Citation Nr: 21029109
Decision Date: 05/12/21	Archive Date: 05/12/21

DOCKET NO. 16-31 227
DATE: May 12, 2021

REMANDED

Entitlement to service connection for migraine headaches, to include as due to exposure to herbicides, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from January 1968 to November 1971. 

The Board remanded the issue in October 2018 for further development.

Entitlement to service connection for migraine headaches, to include as due to exposure to herbicides is remanded.

Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  

The October 2018 Board remand noted that relevant VA treatment records had not been associated with the claims file. Specifically, the Board requested the AOJ to obtain any outstanding treatment records from VA facilities in the Boston, Massachusetts area from the 1970s, and to notify the Veteran and his representative if no records were located.   

Subsequently, in October 2019, the VA determined that no records were found. 

However, the VA failed to send this information to the Veteran to provide him notice of the findings.  The Board acknowledges that the issue was readjudicated in a June 2020 Supplemental Statement of the Case (SSOC), which was sent to the Veteran. The SSOC, however, did not contain sufficient notice under 38 C.F.R. § 3.159(e), which requires identifying the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claims, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain, and notice that the claimant is ultimately responsible for providing the evidence.  

Therefore, the Board finds that there has not been substantial compliance with the remand directives and corrective action is necessary to notify the Veteran in accordance with 38 C.F.R. § 3.159(e) that the records are unavailable. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance). 

The matter is REMANDED for the following action:

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Provide the Veteran with appropriate notice under 38 C.F.R. § 3.159(e) regarding the unavailability of his treatment records from VA medical facilities located in Boston, MA, from the 1970s.

 

 

H. SEESEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Dourmashkin, Mark W.

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.