Citation Nr: 21025907 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-31 165 DATE: April 29, 2021 REMANDED Entitlement to Dependency and Indemnity Compensation (DIC) based on eligibility as a surviving parent for VA purposes, to include service connection for cause of death, is remanded. REASONS FOR REMAND The Appellant contends that her son served on active duty in the U.S. Army from April 1997 to November 1997. The Appellant’s son died in March 1998, and as his surviving parent, she filed the instant claim in May 2014. This case initially came before the Board of Veterans Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. The Board sincerely regrets the additional delay occasioned by multiple remands. However, the Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. In its August 2019 remand, the Board instructed that the AOJ obtain STRs and SPRs including directly requesting them from the National Guard and Army or other sources, and that if the totality of the STRs could not be obtained then the appellant should be assisted in doing so by preparation of an additional Memorandum of Formal Finding of Unavailability of STRs and notification to the appellant that even though her son’s service records could not be doing, alternative methods would be considered in support of her claim in accordance with VA regulations. These instructions were pursuant to 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e)(1), which provide that when VA is unable to produce records that were once in its custody an explanation should be given a claimant as to how STRs are maintained, why the search that was conducted constitutes a reasonably exhaustive search, and why further efforts are not justified, and pursuant to Dixon v. Derwinski, 3 Vet. App. 261, 264 (1992), that the claimant be assisted in obtaining sufficient evidence from alternate or collateral sources. Pursuant to the August 2019 Board remand, the AOJ contacted the National Guard office and National Pension Records Center (NPRC) to obtain outstanding service treatment records and service personnel records belonging the Appellant’s son. In the April 2020 Supplemental Statement of the Case (SSOC) the AOJ indicated that no response had been received from the National Guard office, and a negative response was received from NPRC. The record does not demonstrate the AOJ directly requested records from the U.S. Army pursuant to the August 2019 remand. Additionally, the AOJ did not prepare the additional formal determination that the records either do not exist or that further efforts to obtain those records would be futile. As a proper formal finding was not made, and it does not appear that the other remand instructions were followed, the claim on appeal must be remanded to ensure compliance with those orders. The matter is REMANDED for the following action: 1. Obtain the service treatment records and service personnel records belonging to the Appellant’s son from all appropriate sources, including directly requesting such records from the U.S. Army, as well as any other entity or organization that may have information regarding his treatment records or personnel records. 2. If service treatment records cannot be obtained, including medical and personnel records, then the Appellant must be assisted in obtaining sufficient evidence from alternate or collateral sources, to include all of the following: (a) Issue a new Memorandum of Formal Finding of Unavailability of Service Treatment Records that service treatment records do not exist or that further efforts to obtain such records would be futile. (b) The Appellant should be notified of the attempts made, why further attempts would be futile, and allowed the opportunity to provide such records, pursuant to 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.