Citation Nr: 23044167
Decision Date: 08/08/23	Archive Date: 08/08/23

DOCKET NO. 19-10 979
DATE: August 8, 2023

REMANDED

Whether new and material evidence has been received to reopen a petition to establish eligibility for Department of Veterans Affairs (VA) dependency and indemnity compensation (DIC) benefits is remanded.

REASONS FOR REMAND

The Servicemember served on active duty with the United States Marine Corps from November 1978 to September 1981; the character of this service is the subject of this appeal.  The Servicemember died in 2011; the Appellant is the Servicemember's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 administrative decision issued by a VA Regional Office (RO) that determined the Servicemember's military service does not entitle the Appellant to VA benefits.  The Appellant testified before the undersigned Veterans Law Judge (VLJ) at a hearing in June 2023.  

Whether new and material evidence has been received to reopen a petition to establish eligibility for VA DIC benefits is remanded.

The service personnel records in the claims file do not appear to be complete.  There is one request for an excerpt of personnel records documenting the facts and circumstances around the Servicemember's discharge, but there is no specific request for the full personnel file.  The records associated with the claims file include a list of duty assignments, which indicates the Servicemember received favorable proficiency and conduct marks prior to the time his misconduct began in service.  However, there are no other personnel records reflecting any information about the Servicemember's time in service prior to his misconduct.

Having the complete service personnel and treatment records available for review is critical to a determination of whether a bar to benefits applies, or whether any defenses to such a bar apply.  Therefore, a remand is necessary to attempt to obtain the Servicemember's full service department file.

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The matter is REMANDED for the following action:

Obtain the Servicemember's complete service personnel records.  Determine whether the Servicemember's complete service treatment records are associated with the claims file, and request the complete set of records if necessary.

 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Josey, 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.