Citation Nr: 21031187 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-03 150 DATE: May 20, 2021 REMANDED Entitlement to service connection for a thyroid disability, to include post-thyroidectomy residuals of Hashimoto's thyroiditis, claimed as due to radiation exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from June 1982 to December 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In October 2019, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board notes that the VLJ who conducted this hearing is no longer employed at the Board. VLJs who conduct hearings must participate in making the final determination of the claim on appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In an April 2021 letter, the Board notified the Veteran that the VLJ was no longer employed by the Board, and informed him of the right to another hearing. This letter also informed that if the Veteran did not respond within 30 days, the Board would assume that another hearing was not desired and would proceed to adjudicate the claim on appeal. In April 2021, the Veteran responded that he does not wish to appear at another Board hearing. This matter was previously before the Board in February 2020, where it was remanded for additional development. The Board notes that there was not substantial compliance with its February 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As mentioned above, the Board remanded the Veteran's claim in February 2020, specifically "to obtain and associate with the claims file any and all documents pertaining to the Veteran dated between December 1992 to July 2013, to specifically include any September 2009 rating decision denying service connection for a thyroid disability, and all evidence considered herein." See BVA Decision, February 2020. The basis for this was due to a December 2015 Statement of the Case (SOC) indicating a de novo review of the finding in the previously denied September 2009 rating decision; however, a review of the file does not contain such rating decision, nor any documents whatsoever between December 1992 to July 2013. Therefore, for completion purposes, as well as for determination of the appropriate characterization and scope of the claim on appeal (specifically whether the claim is subject to a prior, final denial, and new and material evidence is required to reopen the claim before it may be adjudicated on the merits, or whether the claim should be adjudicated as a de novo claim for service connection), the Board remanded the claim to obtain such relevant records. However, upon further review of the claims file, and subsequent to the Board's February 2020 remand, the Board notes that the RO failed to undertake the appropriate action to secure the necessary documents from December 1992 to July 2013, to include a September 2009 rating decision. In fact, it appears that the RO only requested documents dated between September 2009 to August 2020, without any further request for documents dated prior to that timeframe, as required by the February 2020 remand directives. Additionally, it appears that the RO's request for documents only included a request for the Veteran's legal name of Peter Lyn Ottersbach, which only took affect after July 2013; however, failed to include a request for the Veteran's prior legal name of Lori Lyn Ottersbach as directed by the Board, which was in affect prior to July 2013. The Board further notes that no response regarding furnishing the requested documents was ever received by the RO, nor was there a formal finding of unavailability of those documents uploaded to the Veteran's claims file. Therefore, given that these documents are pertinent to the adjudication of the Veteran's claim, and there is no such indication in the claims file that these documents are unavailable for review, the Board finds that another remand is necessary to obtain such documents before readjudication of the claim and in compliance with Stegall. As such, a remand is necessary to address the matters discussed above. The matters are REMANDED for the following action: 1. Undertake all appropriate action, to include securing and reviewing the Veteran's paper claims file and/or contacting the appropriate records repository, to obtain and associate with the claims file all relevant documents related to the Veteran dated between December 1992 to July 2013, to specifically include the September 2009 rating decision and all evidence considered in that decision. Searches should be conducted under both of the Veteran's legal names Lori Lyn Ottersbach prior to July 2013, and Peter Lyn Ottersbach since that date. All efforts in this regard, and any response(s) received, should be documented in the claims file. (Continued on the next page) 2. If any or all the records requested are unavailable, the RO must complete and upload a formal finding of unavailability. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hodges, Associate 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.