Citation Nr: 21071948 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 19-15 821A DATE: December 1, 2021 REMANDED Entitlement to service connection for the ca use of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from August 1954 to September 1975. The Veteran died in December 2000 and the appellant is his surviving spouse. In July 2020, the appellant testified at a video hearing before the undersigned Veterans Law Judge and a transcript of that hearing has been associated with the claims file. In December 2020, the Board of Veterans' Appeal (Board) issued a decision that reopened the claim of service connection for the cause of the Veteran's death and thereafter denied service connection for the cause of death. As to the denial of the claim of service connection for the cause of the Veteran's death, the claimant appealed the December 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the December 2020 Board decision to the extent that it denied service connection for the cause of the Veteran's death. Entitlement to service connection for the cause of the Veteran's death is remanded. The JMPR vacated and remanded the December 2020 Board decision to the extent that it denied service connection for the cause of the Veteran's death because at "...the July 23, 2020, hearing, Appellant testified that the Veteran received 'VA medical treatments that he got when he got home, registered for Agent Orange, like I said, this was in the 70's'... [and] the Board ... [decision did not]... address the duty to assist and whether there are outstanding treatment records from the 1970's." Moreover, a review of the record on appeal reveals that the Veteran separated from his second period of active duty in September 1975 and the appellant also testified that his post-service treatment was at the Greenville, South Carolina, VA Medical Center. Given the above, the Board finds that in order to address the concerns raised in the JMPR a Remand is required to attempt to obtain and associated with the record the Veteran's September 1975 to December 1979 treatment records from the Greenville, South Carolina, VA Medical Center or to confirm that no such records are still available. See 38 U.S.C. § 5103A(b); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). While the appeal is in Remand status, any other outstanding VA and private treatment records should also be obtained and associate with the record. See 38 U.S.C. § 5103A(b). The JMPR also vacated and remanded the December 2020 Board decision to the extent that it denied service connection for the cause of the Veteran's death because "... the Board ... [did not]... address the [appellant's] argument that ...[the Veteran]... was exposed to Agent Orange when he 'flew from Thailand into Vietnam with supplies.'" In this regard, the Board notes that the Veteran's service personnel records include a performance report that shows he served with the Supply Squadron at Nakhon Phanom Royal Thai Air Force Base from April 1970 to October 1970. Given the above, the Board finds that in order to address the concerns raised in the JMPR a Remand is also required to attempt to obtain service department records that verify or disprove the appellant's claim that the Veteran actually stepped foot in the Republic of Vietnam at some time from April 1970 to October 1970 while he was stationed in Thailand. See 38 U.S.C. § 5103A(b); Forcier, supra; McBurney, supra. The appeal is REMANDED for the following actions: 1. To comply with the JMPR, associate with the claims file all, if any, of the Veteran's September 1975 to December 1979 treatment records from the Greenville, South Carolina, VA Medical Center. Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA's actions to obtain the records should be prepared and associated with the claims file and the appellant should be notified in writing that the records cannot be found. 2. Associate with the claims file any other outstanding VA treatment records. 3. After obtaining all needed authorizations from the appellant, associate with the claims file any outstanding private treatment records. If possible, the appellant should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 4. To comply with the JMPR, contact the appropriate service department and request any records that could verify or disprove the appellant's claim that, while station in Thailand from April 1970 to October 1970 with the Supply Squadron at Nakhon Phanom Royal Thai Air Force Base, the Veteran actually stepped foot in the Republic of Vietnam when he helped transport supplies to troops in the Republic of Vietnam by airplane from his base in Thailand. (Continued on the next page) Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA's actions to obtain the records should be prepared and associated with the claims file and the appellant should be notified in writing that the records cannot be found. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.