Citation Nr: 21075475 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 11-01 892 DATE: December 20, 2021 REMANDED The issue of entitlement to recognizing A.G. as the dependent child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1974 to February 1976 and from December 1980 to October 2000. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran's claims file currently resides with the San Juan, the Commonwealth of Puerto Rico RO. In July 2018, the Board issued a decision which included a denial of recognition of A.G. as the dependent child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In June 2019, the Veteran and the Secretary filed a Joint Motion for Remand (JMR) requesting that the Court vacate and remand the Board's July 2018 decision. The Court granted the JMR later in June 2019. Thereafter, the Veteran's dependency issue returned to the Board and, in December 2019, the Board remanded it to the Agency of Original Jurisdiction (AOJ) for additional development. Following this additional development by the AOJ, the Board issued another decision in March 2021 denying entitlement to recognizing A.G. as the dependent child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18. The Veteran then appealed the March 2021 Board decision to the Court. In November 2021, the Veteran and the Secretary filed another JMR requesting an order to vacate and remand the Board's March 2021 decision. The Court granted the JMR and issued the requested order later in November 2021. The case has returned to the Board. The Board notes that, on November 15, 2021, it informed the Veteran and his representative that he had 90 days to submit additional argument and evidence. On November 16, 2021, the Veteran waived the remainder of the 90-day period. Dependency In their November 2021 JMR, the Veteran and the Secretary indicated that, pursuant to 38 U.S.C. § 5103A(c)(2), VA has a duty to obtain records in the custody of a Federal department or agency, and that "the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." The parties then noted that, in March 2020, VA sent the Veteran a letter stating that it had attempted to obtain records for the treatment of A.G. from the William Beaumont Army Medical Center (Beaumont). The March 2020 letter explained that VA had determined that these records could not be located and that further attempts to obtain the records would be futile. The March 2021 Board concluded that this attempt to locate the identified Beaumont records had satisfied VA's duty to assist and that the March 2020 letter had fulfilled VA's obligations under 38 C.F.R. § 3.159(e). The Veteran and the Secretary agreed that the March 2021 Board's finding concerning the unavailability of the Beaumont records was erroneous as it was based upon a notation of "No Response Received" to a February 2020 records request made to Beaumont. The parties concluded that it was unclear how "No Response Received" led to a finding of futility within the context of VA fulfilling its duty to assist. To remedy this error, the parties indicated that remand was required for VA to attempt to obtain the Beaumont records or, if such attempts are unsuccessful, provide an actual basis to support a finding of futility. Pursuant to the terms of the November 2021 JMR, the Board remands the Veteran's for the AOJ to attempt to obtain these outstanding Beaumont records. The matter is REMANDED for the following action: Provide the Veteran with the appropriate authorization and consent forms needed for him to identify and for VA to obtain federal records from the William Beaumont Army Medical Center related to treatment the Veteran's child A.G. received while the Veteran was on active duty service. If such records are not available, the AOJ should attempt to elicit a clear response from the William Beaumont Army Medical Center regarding their unavailability. Thereafter, if such records are unavailable, the AOJ should prepare a new formal finding of unavailability and notify the Veteran and his representative pursuant to 38 C.F.R. § 3.159(e). The AOJ is notified that a lack of a response or an indication of "No Response Received" from the William Beaumont Army Medical Center may not serve as a basis for futility under 38 C.F.R. § 3.159(e). S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.