Citation Nr: 21073555 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 13-07 021 DATE: December 9, 2021 REMANDED Entitlement to Montgomery GI Bill (Chapter 30) education benefits for on-the-job training (OJT) with U.S. Customs and Border Protection from September 17, 2008 to September 18, 2009 is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1990 to January 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In November 2017, the Veteran testified before the undersigned Veterans Law Judge at a Board video conference hearing. A copy of the transcript is of record. This matter was previously before the Board in February 2018 at which time the case was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. The case was returned to the Board in June 2020 and the Board denied the appeal. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In March 2021, the Court granted a joint motion for remand (JMR) vacating the Board's June 2020 decision and remanding the matter back to the Board. The Board, in turn, remanded the case to the AOJ in August 2021. The matter is once again before the Board. The Board pointed out in the August 2021 remand that the basis of the JMR is that it did not ensure that VA complied with its duty to assist requirements under 38 U.S.C. § 5103A and 38 C.F.R. §3.159(c) with respect to obtaining records in the possession of a Federal agency. The records in question pertain to an outstanding application for Chapter 30 education benefits that the Veteran asserts he filed in 2009 with the U.S. Customs and Border Protection and which the agency, in turn, filed with VA. Multiple attempts were made to obtain a copy of the application from the U.S. Customs and Border Protection Agency along with proof of VA receipt of the application, but the agency has not responded to VA's requests. The JMR noted that VA is required to end its efforts to obtain records from a Federal department or agency only if it concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 38 C.F.R.§ 3.159(c)(2). The Board thus directed in the August 2021 remand that the AOJ should make further attempts to obtain the application in question from the U.S. Customs and Border Protection or any other appropriate source and, if the application cannot be located, to obtain written confirmation of such fact. The Board also instructed the AOJ to inform the Veteran if the requested evidence could not be obtained and to provide him with the opportunity to respond. Pursuant to the Board's remand, the AOJ contacted the U.S. Customs and Border Protection and the Veteran in writing in August 2021 and requested a copy the missing application or confirmation that it could not be located. Thereafter, in October 2021, the AOJ returned the case to the Board noting that no response had been received from either the U.S. Customs and Border Protection or the Veteran and that any additional attempts to request the information would be futile. Accordingly, it is still unclear whether the missing application is in the possession of the U.S. Customs and Border Protection. Since the multiple written attempts by the AOJ to the U.S. Customs and Border Protection have been unsuccessful, the AOJ should contact the agency via electronic email and/or telephone and document each attempt in the record. If the AOJ is still unable to obtain the information from the U.S. Customs and Border Protection, it should notify the Veteran of that fact. While the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The matters are REMANDED for the following action: (Continued on the next page) 1. Contact the U.S. Customs and Border Protection located at 207 West Del Mar Blvd Laredo, Tx 78041 by electronic mail and/or by telephone and request a copy of the Veteran's application for Chapter 30 benefits that he said that he filed in 2009 with proof of receipt by VA (i.e., a date stamped copy or letters from the VA). If the application cannot be located, ask the U.S. Customs and Border Protection to inform VA of that fact. If the AOJ cannot obtain the records referenced above, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, review the record and readjudicate the claim. If denied, issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond before the case is returned to the Board. Lesley A. Rein Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Shawkey, 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.