Citation Nr: 21070533 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 20-27 348 DATE: November 24, 2021 REMANDED Whether the severance of entitlement to service connection for posttraumatic cortical visual impairment from October 7, 2013 based upon fraud was proper is remanded. Whether the reduction in the rating from 50 percent to 30 percent for migraine headaches, effective August 28, 2017, was proper is remanded. Whether the severance of entitlement to special monthly compensation (SMC) based on bilateral blindness from October 7, 2013 based upon fraud was proper is remanded. Whether the severance of entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only based upon fraud was proper is remanded. Whether the severance of entitlement to special home adaptation grant based upon fraud was proper is remanded. Whether the discontinuance of a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) from December 11, 2014 based upon fraud was proper is remanded. Whether the discontinuance of basic eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 from October 7, 2013 based upon fraud was proper is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from January 1997to October 2013. The Veteran was awarded the Purple Heart and Combat Action Badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May2018rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In its May 2018 rating decision of the rating reduction, severance and discontinuance issues on appeal, the RO's determination that the Veteran had engaged in fraud was wholly based on the findings of a January 12, 2018 Comprehensive Reports of Investigation from the VA Office of Inspector General (OIG) Criminal Investigations Division. In October 2020, the Board remanded the case for further development. The issues have been returned to the Board for further appellate consideration. Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Specifically, the record clearly indicates that the January 2018 VA OIG Comprehensive Reports of Investigation was available to review by the RO, the VA OIG report has not been associated with the claims file. As noted, the Board remanded the case so that the paper file from the OIG could be obtained. Pursuant to the 2020 Board remand instructions, the RO sent several record requests to the OIG for the paper records associated with the 2018 investigation related to the Veteran. The RO first contacted the OIG in October 2020. In response to these requests, an October 2020 correspondence from a Special Agent, of the OIG was received. It was noted that the OIG prefers "to not have our investigative reports uploaded to VBMS" but that the attorney for OIG would "get the BVA a copy of the VA-OIG Comprehensive Report of Investigation (CROI)... Also, the report has a 'video exhibit' that goes along with it" and that the attorney would coordinate with BVA to get both the report and video exhibit. Later that month, a Veterans Service Center Manager from the Wichita RO stated: "the OIG does not want the documents uploaded into VBMS as this is an ongoing criminal investigation with upcoming federal trial." Because the January 2018 VA OIG report formed the basis for reducing, severing, and discontinuing the Veteran's VA benefits, the Board cannot evaluate the propriety of the May 2018 rating decision without this information. Further, no SSOC was issued before the claim was recertified to the Board. As the requested development has not been completed, the appeal is not ready for adjudication. Because of these failings, there has not been compliance with the Board's prior remand directives, not even what could be considered acceptable substantial compliance. Stegall, 11 Vet. App. at 271. The propriety of the rating reductions the terminations depend on the accuracy of the facts underlying the fraud investigation. The Board cannot assess whether the facts rise to the level of benefits fraud without additional information. As such, on remand, the RO should seek information as to the status of the federal investigation that arose from the VA OIG report and obtain any related documentation. The RO should also obtain and associate with the claims file the complete January 2018 VA OIG report along with any supporting documentation; if OIG insists on privacy issues with uploading the report, please request a redacted copy of the file. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file a complete copy of the January 12, 2018 VA OIG Criminal Investigations Division Comprehensive Reports of Investigation along with any supporting documentation. To the extent that the VA OIG report and any supporting documentation cannot be associated with the claims file, an explanation must be provided. Should the OIG conclude that privacy issues preclude the provision to VA of any of any documentation or evidence used to reach any decision in the Veteran's claim, provide a redacted copy of the file. 2. Contact the U.S. Attorney where the federal investigation is pending, or other appropriate authority, to determine the current status of any criminal investigation of the Veteran related to the January 2018 VA OIG report. Request all available documentation related to such investigation(s), to include the criminal proceedings against the Veteran in the District Court of the United States where the federal investigation is pending as noted in the October 2020 message from OIG, to include any plea agreements and indictments. If such information cannot be obtained, provide an explanation as to the efforts undertaken to obtain such information. 3. Thereafter, and after any further necessary development, the Veteran's claims should be readjudicated. If the claims remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case. Martina Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.