Citation Nr: 21016085
Decision Date: 03/19/21	Archive Date: 03/19/21

DOCKET NO. 15-07 473
DATE: March 19, 2021

REMANDED

The issue of entitlement to “kicker” payments under the provisions of Chapter 33, Title 38, United States Code (known as the Post-911 GI Bill) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 2000 to August 2004.

On September 20, 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge, which hearing was held at the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. Unfortunately, a transcript of that hearing is unavailable due to technical difficulties with the audio recording system.  In an October 2020 letter, the Board advised the Veteran that a transcript was unavailable and offered him the opportunity to participate in a new hearing. The Veteran was informed that if no response was received within 30 days, the Board would assume that he did not desire an additional hearing. To date, no response has been received. The Board will, therefore, proceed with adjudication of the claim on appeal.

In January 2019, the Board remanded this claim and instructed the RO to make efforts to obtain the Veteran’s paper education file and to readjudicate the claim.  

It does not appear from the electronic record that the education file has been obtained, or that the claim was readjudicated.  The United States Court of Appeals for Veterans Claims (Court) in Stegall v. West, 11 Vet. App. 268 (1998) held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders.  It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.

The matter is REMANDED for the following action:

1. Undertake all necessary efforts to obtain the Veteran’s education file and associate those records with his claims file.  If these records are unavailable, efforts to obtain, and reconstruct if necessary, should be documented in the claims file.  The RO must then: (a) notify the Veteran 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 claim.  The Veteran must then be given an opportunity to respond.

2. After completing the requested actions, and any additional notification and/or development deemed warranted, the AOJ should readjudicate the issue of whether any further adjudication of the Veteran’s claim of entitlement to “kicker” payments under the Post-9/11 GI Bill is warranted prior to returning the appeal to the Board for further appellate adjudication.

 

 

ERIC S. LEBOFF

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Prem, 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.