Citation Nr: 21031707 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-51 819 DATE: May 24, 2021 REMANDED The issue of whether the Appellant has verifiable military service in order to establish status as a veteran for VA purposes is remanded. REASONS FOR REMAND The Appellant asserts that he served honorably on active duty in the United States Army from June 1956 to May 16, 1958. To date, such service has not been verified. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2016 administrative decision issued by a VA Regional Office (RO) in Wichita, Kansas. The Board notes the Appellant originally requested a Board hearing along with the filing of his VA Form 9 substantive appeal in November 2018. The first such hearing was scheduled for April 2020. This hearing was ultimately postponed, and new hearings were scheduled for September 2020 and January 2021, which were also postponed. A new hearing was scheduled for April 2021 where the Appellant was noted as a "no show." The record shows the notices of these hearings were sent to the correct address of the Appellant with no reports of returned mail or notice of a change of address. To date, the Appellant has not shown good cause for his "no show," nor requested a new Board hearing. Accordingly, the Board considers the hearing request to be withdrawn. 38 C.F.R. § 20.704(d). Whether the Appellant has verifiable military service in order to establish status as a veteran for VA purposes. The Board finds that further efforts need to be undertaken to attempt to verify the Appellant's claimed military service. The Board notes that the National Personnel Records Center (NPRC) has indicated that the Appellant's service records were destroyed by fire. Approximately 80 percent of the records held by the NPRC for Veterans who served in the Army between 1912 and 1960 were destroyed in the 1973 fire at the NPRC. The Appellant's records were lost in the 1973 fire. In such cases, the United States Court of Appeals for Veterans Claims (Court) has held that the duty to assist is heightened and includes an obligation to search alternative forms of records that may support the Appellant's case. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). There is also a heightened obligation to explain findings and to carefully consider the benefit of the doubt rule in cases where records are presumed destroyed while in the possession of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection. Russo v. Brown, 9 Vet. App. 46 (1996). Finally, only service department records can establish if and when a person was serving on active military service. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). Service department records are binding on VA for purposes of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also 38 C.F.R. § 3.203. Thus, the Board cannot just accept any evidence and give the Appellant the benefit of the doubt that he has the requisite active military service. If the Appellant does not submit the appropriate evidence of service, verification from the service department is required. 38 C.F.R. § 3.203(c). The RO requested verification of the Appellant's service in October 2016. That same month, the NPRC responded that the records were "fire-related" and that all available information of the reconstructed file was provided to VA. The record indicates such information had been sent to a vendor for scanning into the claims file. The RO made a second request for verification of the Appellant's service in December 2016. That same month, the NPRC responded that it was unable to conduct a search based on the information furnished. Rather, it needed the Appellant's complete unit at the time of separation; specific to the Department of the Army, it required his company, battery, and battalion. In August 2018, the RO sent a notification letter to the Appellant requesting this information. In September 2018, the Appellant responded that he did not have any additional information. However, the Appellant submitted a January 1991 correspondence from VA regarding a VA home loan guarantee. The letter indicates that the Appellant had received a loan and that such loan was paid in full. Notably, the records related to this loan, to include supporting documents, have not been associated with the claims file. In light of the above, the Board finds that additional efforts to verify the Appellant's service, to include character of discharge, should be undertaken. In particular, the RO should obtain all records in connection with the Veteran's VA home loan and associate them with the claims file. Additionally, the Board strongly suggests that the Appellant submit a request to the Department of the Army Board of Corrections of Military Records (ABCMR) to obtain verification of service and characterization of discharge from the military service. As noted above, VA is bound by the findings of the service department, and such a determination from the ABCMR would be beneficial to the Appellant in obtaining VA benefits. Consequently, the Board finds a remand is warranted to address the matters above and ensure every effort is made to assist the Appellant with his appeal. The matter is REMANDED for the following actions: 1. Send the Appellant an additional duty to assist letter advising him that the service department has requested he provide his unit assignment at separation from active military service, specifically the company, battery and battalion, in order to allow it to verify his service and, therefore, he should provide such information as soon as possible so that VA can submit it for service verification. 2. Obtain the Appellant's complete VA home guarantee folder to include any "Certificate of Eligibility" and/or "Loan Guarantee Certificate" as well as any other supporting documentation, associated with the Appellant's loan guaranty application, referenced in the VA Memo dated January 14, 1991. 3. Contact the NPRC or NARA or other appropriate office to obtain further information regarding the period of service, to include character of discharge, that the appellant served from June 17, 1956 (with an additional enlistment or reenlistment on April 22, 1958,) until his discharge on May 16, 1958 (based upon the NPRC's September 2016 statement that the NARA verified the Appellant's dates of service). If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. (Continued on the next page) Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice should be provided to the Veteran and his representative. M. M. Celli Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor 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.