Citation Nr: 1515185 Decision Date: 04/08/15 Archive Date: 04/21/15 DOCKET NO. 13-17 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUE Basic eligibility for VA home loan guaranty benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hughes, Counsel INTRODUCTION The NGB Form 22 of record shows that the appellant served in the Army National Guard (ARNG) from March 5, 1992 to January 31, 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 decision of the Atlanta Regional Loan Center in Decatur, Georgia. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in January 2014. A transcript of the hearing has been associated with the record. At the hearing, the Veteran submitted additional evidence with a waiver of RO jurisdiction. He also requested, and was granted, a 60 day abeyance period for submission of additional evidence. Additional evidence has not been received. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In order to be eligible for certain VA benefits, to include home loan guaranty benefits, a service member must generally perform a "minimum duty" requirement; either 24 months of continuous active duty or the full period for which the service member was called or ordered to active duty. 38 U.S.C.A. § 5303A(b)(1) (West 2014). This statute provides that notwithstanding any other provision of law, any requirement for eligibility for or entitlement to any VA benefit that is based on the length of active duty served by a person who initially enters such service after September 7, 1980, is governed exclusively by the eligibility requirements set forth in the law. There are situations in which the basic eligibility requirements for VA benefits as set forth under 38 U.S.C.A. § 5303A do not apply. One of those situations relates to home loan benefits. 38 U.S.C.A. § 5303A(b)(3)(F) provides that the 24 month requirement does not apply to benefits under chapter 37, but only if those benefits are implicated "by reason of" certain factors. Those factors are discharge or release for the convenience of the government, discharge or release for a medical condition that preexisted service and is not service connected, involuntary discharge or release for the convenience of the government based on reduction in force, and discharge or release for a physical or mental condition not characterized as a disability that interfered with performance of duty. 38 U.S.C.A. § 5303A(b)(3)(F)(i-iv). The Veteran's Eligibility Application shows active duty dates from April 1, 1989 to April 1, 1993 and reserve duty dates of April 1, 1992 to April 1, 1993. The record also includes an NGB Form 22 which shows service from March 5, 1992 to January 31, 1997 (4 years, 10 months and 26 days) of net ARNG service and notes "Para 8-26y NGR 600-200 Medically Unfit for Retention" as the Authority and Reason. In addition, a DD Form 214 shows ARNG service from March 20, 1992 to July 10, 1992 (3 months and 21 days) and notes "completion of period of ADT (active duty training)" as the narrative reason for separation. The Veteran claims that he was discharged for a service-connected disability. See February 2013 notice of disagreement, May 2013 substantive appeal and January 2014 hearing transcript. Specifically, he reports that he was in an automobile accident and suffered a back injury when driving home from training in October 1993. In support of his claim, the Veteran has submitted private treatment records which include a February 1993 treatment note indicating that the Veteran sustained a back injury in a motor vehicle accident in October (1992). He also submitted service personnel records which note that he has a medical condition (lower back) which no longer qualifies him for retention. Review of the record suggests that the Veteran's complete claims folder is not available for review. While a folder marked "Temp File" has been forwarded to the Board, this file does not include his complete record (i.e., verification of service dates, service medical and/or personnel records, past rating decisions, etc.). If available, the claims file may contain information that could be critical, and should be considered. If the claims file is not available (or does not contain the pertinent evidence), verification of his service dates must be accomplished and his private and/or service treatment and personnel records must be requested/obtained. Accordingly, the case is REMANDED for the following action: 1. The Veteran's complete claims folder should be associated with the files prepared for this appeal. If the claims folder is unavailable because it is irretrievably misplaced or destroyed, it should be so certified. 2. The AOJ must ask the Veteran to identify the provider(s) of all evaluations and treatment he received in connection with the back injury/automobile accident which resulted in his being "discharged for a service-connected disability," and to provide any releases necessary for VA to secure private records of such evaluations and/or treatment. The AOJ must secure complete records of such evaluations and/or treatment from all providers identified. 3. The AOJ must take all appropriate action to verify the Veteran's period(s) of active duty and reserve service. 4. Contact the National Personnel Records Center (NPRC) and/or the appropriate service entity and request all available service treatment records and service personnel records of the appellant for incorporation into the record. 5. Finally, after undertaking any additional necessary development, readjudicate the issue of basic eligibility for VA home loan guaranty benefits. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).