Citation Nr: 21021555 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 09-37 177A DATE: April 13, 2021 REMANDED Propriety of the reduction from a total (100 percent) evaluation for loss of use of the lower extremities, to a 40 percent rating for bilateral lower extremity peripheral neuropathy, effective August 3, 2008, is remanded. Propriety of the discontinuance of special monthly compensation (SMC) for loss of use of the lower extremities is remanded. Propriety of the discontinuance of entitlement to automobile and adaptive equipment benefits is remanded. Propriety of the discontinuance of entitlement to specially adapted housing benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1966 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2013, the Veteran testified at a pre-determination hearing before a Decision Review Officer. A transcript of the hearing is associated with the record. In August 2014 and January 2017, the Board remanded the case for additional development and it now returns for further appellate review. The Veteran changed his representative from the American Legion to the Texas Veterans Commission, as shown in April and September 2020 correspondences. VA has acknowledged such change. Thereafter, the American Legion submitted a motion to withdraw as representative in this case. As the motion was received after VA has accepted the change in representative, such motion is moot. Notably, a new docketing letter had not been sent to the Veteran and his representative after the change in representation, and as such the Texas Veterans Commission has not had a chance to submit argument. As the Board is remanding herein however, such error is not prejudicial, and the Veteran’s representative will have ample opportunity to participate in the appeal. Additionally, new evidence was added to the record after the most recent supplemental statement of the case (SSOC), including criminal court proceedings concerning the instant appeal from the U.S. District Court for the District of Minnesota. Again, as the Board is remanding herein, the RO will have a chance to review such evidence. 1. Propriety of the reduction from a total evaluation for loss of use of the lower extremities, to a 40 percent rating for bilateral lower extremity peripheral neuropathy, effective August 3, 2008. 2. Propriety of the discontinuance of entitlement to automobile and adaptive equipment benefits. 3. Propriety of the discontinuance of SMC (l) for loss of use of the lower extremities. 4. Propriety of the discontinuance of entitlement to specially adapted housing benefits. After a review of the record, the Board finds another remand is necessary in order to comply with prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, both the prior remands instructed the RO to obtain and associate with the record the VA Inspector General (IG) investigation findings, including the underlying evidence for such. The prior remands noted that the RO’s finding that the Veteran had engaged in fraud rested significantly on such report. The prior Board remand noted that the March 2015 SSOC issued just prior to the Remand, includes reference to a DVD, numerous lay statements, and pictures that are not in the record. Similarly, the full formal findings of the VA IG were not associated with the record. Rather, only a small part of the report, the comprehensive report of investigation, was associated with the record. Further, the first Board remand directed the RO to obtain any information relating to whether the IG file had been referred to the U.S. Attorney’s Office. Unfortunately, by the January 2017 Remand, the only new information was a February 2015 letter from the U.S. Department of Justice confirming that the matter was referred to the U.S. Attorney, but no information or documents could be provided to VA because the Federal Rules of Criminal Procedure prohibited disclosure of any matter before a grand jury. The letter indicated that the Department of Justice intended to act within the next six months. Accordingly, the Board directed the RO to conduct further development to ascertain whether the Grand Jury proceedings were completed. Following the January 2017 Remand, the RO did not attempt to obtain and associate the IG investigative findings and evidence with the record. Thus, such records should be obtained. Further, the U.S. Department of Justice replied in June 2017, stating that an indictment was planned but an issue of venue had arisen, and again no information or documents could be provided to VA because the Federal Rules of Criminal Procedure prohibited disclosure of any matter before a grand jury. However, in a January 2021 correspondence, the Veteran’s former representative filed a motion to withdraw representation which included a plea agreement from the U.S. District Court for the District of Minnesota, wherein the Veteran agreed to a guilty plea for fraudulent acceptance of payments with restitution ordered to be paid to VA. Thus, the U.S. Department of Justice and court proceedings have been completed, and the RO should ensure all such relevant documents are associated with the record. The matters are REMANDED for the following action: 1. The complete IG report and associated documents, including those cited in the March 2015 SSOC should be associated with the record. 2. Obtain and associate with the record all documents relevant to the criminal court proceeding from the U.S. District Court for the District of Minnesota. Notify the Veteran of any information obtained. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonathan M. Estes 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.