David R. Gagne v. Robert A. McDonald , 2015 U.S. Vet. App. LEXIS 1404 ( 2015 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 14-0334
DAVID R. GAGNE, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued September 10, 2015 Decided October 19, 2015)
David M. Sonenshine, with whom Barton F. Stichman, and Amy F. Odom, all of Washington,
D.C., were on the brief for the appellant.
Tammy L. Kennedy, with whom Mary Ann Flynn, Assistant General Counsel, Christopher
W. Wallace, Acting Deputy Assistant General Counsel, and Tamika Springs, Appellate Attorney,
all of Washington, D.C., were on the brief for the appellee.
Before KASOLD, DAVIS, and GREENBERG, Judges.
GREENBERG, Judge: This is a case of statutory construction. The appellant, David R.
Gagne, appeals through counsel a November 8, 2013, decision of the Board of Veterans' Appeals
(Board) that denied entitlement to benefits based on service connection for a psychiatric disorder,
to include post-traumatic stress disorder (PTSD), and a depressive disorder with mixed anxiety
features. Record (R.) at 3-16. The Court has jurisdiction to review the Board's decision pursuant
to 38 U.S.C. § 7252(a). For the following reasons, the Court will vacate the Board's November 2013
decision and remand the matter for the regional office (RO) to submit to the Joint Services Records
Research Center (JSRRC) multiple requests for records of a stressor event, each request
encompassing a different 60-day period, to cover the appellant's relevant service period from July
1967 to September 1968 as a truck driver with the 91st Engineer Company.
I.
The appellant served on active duty in the U.S. Army from December 12, 1966, to August
3, 1968. R. at 222 (DD Form 214). He was deployed to Thailand during the Vietnam War and
served primarily as a heavy vehicle driver in the 91st Engineer Company. Id. According to the
appellant, sometime in 1967 or 1968, he was assigned to build a road, and was operating a dump
truck that was part of a line of trucks waiting to be loaded. R. at 100. His sergeant was walking
between two trucks when suddenly one truck "ran into the truck that was being loaded, crushing my
sergeant between the two vehicles." Id. The appellant claims that he saw a "trailer pinion hitch"
go through the sergeant's chest, and that he used his shirt to try and stop the bleeding and plunged
his hand into the back part of the wound. Id. As far as the appellant knew, the sergeant died from
his injuries. Id.In February 2010 the appellant sought treatment at VA for rheumatoid arthritis and reported
symptoms of depression, including lack of motivation and occasional suicidal thoughts, and asked
to be referred for a psychiatric evaluation. R. at 131. On March 6, 2010, the appellant underwent
a psychiatric evaluation, reporting symptoms of avoidance, hypervigilance, trouble sleeping, suicidal
ideation, exaggerated startle response, and irritability. R. at 129. The appellant told the psychiatrist
that his experience in service caused nightmares and flashbacks, symptoms that worsened during
periods of unemployment when he did not have work to distract him. Id. The psychiatrist diagnosed
him with PTSD and alcohol dependence in remission and prescribed Prozac and Seroquel. R. at 131.
On March 29, 2010, the appellant filed a claim for benefits based on service connection for
PTSD. R. at 181-90. On April 5, 2010, VA sent the appellant a letter informing him that they were
"working on" his PTSD claim and requested more specific information regarding the appellant's
PTSD stressor. R. at 105-07. Specifically, VA asked the appellant to provide "the approximate time
(a 2-month specific date range) of the stressful event(s) in question," and gave him 30 days to
respond. Id. On April 29, 2010, the appellant responded, informing VA that all the evidence that
will support his claim has been submitted, and asking that his claim be decided "as soon as
possible." R. at 102. He failed to indicate a date range for his stressor.
On May 7, 2010, VA received a letter from the appellant detailing two events that occurred
during service, including the truck accident, which is the only event at issue in this appeal.1 R. at
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Among the events described in the appellant's letter is the appellant's falling in love with a woman he met
while on leave in Bangkok, Thailand, and learning that she died from exposure to gas emissions a few month after they
met. R. at 99. At oral argument, counsel for the appellant stated that he is not seeking to qualify this event as a stressor
for purposes of establishing service connection for PTSD, and this event's qualification as a stressor is therefore not at
issue in this appeal. See Pederson v. McDonald, 27 Vet.App. 276, 283 (2015) (en banc) (when an appellant abandons
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96-101. In describing the truck accident, the appellant could not recall the sergeant's name, but
remembered that the driver whose truck crushed the sergeant was named "Quisenberry." R. at 100.
The appellant stated that the incident "haunted" him, as he worried that his attempts at stopping the
sergeant's bleeding might have caused his death. Id. Though the appellant could not provide a
specific month and year in which the incident took place, his DA Form 20 indicates that he was a
dump truck driver with the 91st Engineering Company from August 1967 to approximately August
1968. R. at 217.
On May 18, 2010, VA sent the appellant a letter requesting additional details of the incident,
including the names of any service members who died in the truck incident and the 60-day
timeframe in which the event occurred. R. at 91-93. The appellant did not respond to the letter, and
in a June 17, 2010, memorandum, VA issued a formal finding that the appellant had failed to narrow
the date of his stressor event to a 60-day period, and thus "the information provided by the veteran
is insufficient to verify in-service stressor." R. at 90. The memorandum listed the steps that were
taken to obtain the required information from the appellant, including:
1. The personnel pages were received and are a part of the veteran's C-file.
2. On April 15, 2010, veteran was sent a letter requesting information for PTSD
including a VA Form 21-0781.
3. On May 7, 2010, veteran submitted incomplete VA Form 21-0781.
4. On May 18, 2010, follow-up letter was sent to the Veteran requesting more details
of combat related incident to include 60 day time-frame.
5. As of today's date, it has been determined the information provided by the veteran
is insufficient to verify in-service stressor. Therefore, veterans in-service stressor is
unverifiable.
Id.In a June 2010 formal finding, the RO denied the appellant's PTSD claim in part because it
found that "the available evidence is insufficient to corroborate any of the events you described."
R. at 80. In July 2010 the appellant submitted a statement in support of his claim, advising VA that
he had requested service records that might corroborate his PTSD stressors from the National
Personnel Records Center (NPRC) and was waiting for an update on his request. R. at 74. In
August 2010 the appellant sent a letter requesting that his appeal be reviewed by a decision review
an issue or claim, the Court generally will not address it).
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officer (DRO), and attached written descriptions of both stressor events. R. at 67-70. No DRO
sought more information from the appellant to narrow the search for records. In December 2011 the
RO denied the appellant's claim on the basis that there was no medical opinion establishing a link
between his claimed stressors and his diagnoses of PTSD, and also on the basis that the RO found
that "we do not have credible evidence that the claimed stressors occurred." R. at 66. In January
2012 the appellant filed for Board review of his claim, arguing that he had tried to obtain relevant
overseas service records from the NPRC but could not.2 R. at 44-45.
On November 8, 2013, the Board denied the appellant entitlement to service connection for
(1) a psychiatric disorder to include PTSD and (2) a depressive disorder with mixed anxiety features.
R. at 3-16. The Board discussed VA's satisfaction of the duty to assist only in the context of whether
the appellant was entitled to a VA medical examination, finding that an examination was not
warranted as the evidence "does not indicate that either of the Veteran's currently diagnosed
psychiatric disabilities may be associated with service." R. at 7. The Board found that the PTSD
stressors cited by the appellant could not be established as "they have not been corroborated by
supporting evidence." R. at 14 (citing 38 C.F.R. § 3.304(f) (2015)). The Board pointed specifically
to the appellant's failure to respond to VA's May 2010 letter asking for the names of service
members who died in the truck accident and to the RO's June 2010 formal finding that the
information that was provided by the appellant was "insufficient to send to the U.S. Army and
[JSRRC]." R. at 13. This appeal follows.
II.
The appellant argues that the Board failed to ensure that VA satisfied its statutory duty to
assist the appellant in developing his claim under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159.
Appellant's Brief (Br.) at 7-15. Specifically, the appellant argues that VA's strict adherence to the
VA Adjudication Procedures Manual (M21-1MR) requirement that a search be narrowed to a 60-day
period violates the duty to assist. Id. at 7-14. The appellant argues that to comply with its duty to
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On September 8, 2015, the Court ordered the Secretary to provide as soon as possible the transcript of any
Board hearing the appellant received. On September 9, 2015, the Secretary responded, providing evidence that Board
hearings were scheduled for August 9, 2012, and December 3, 2012. The Secretary also provided evidence that the
appellant failed to appear for both hearings, and on December 3, 2012, informed VA that he wished to have the Board
adjudicate his claim "based on the evidence of record."
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assist, the VA must overcome the JSRRC's 60-day requirement by submitting multiple 60-day
searches for records, each search covering a different 60-day period. Id. at 12. The appellant also
argues that VA violated its statutory duty to assist by failing to search for documents that might
corroborate the appellant's stressor events on VA's Compensation Service Intranet Site, a secondary
repository of service documents that RO adjudicators were advised to consult in order to streamline
PTSD claims and decrease the workload of the JSRRC. See M21-1MR, pt. IV, subpt. ii, 1.D.13.j;
Training Letter 07-02 (Mar. 7, 2007). Appellant's Br. at 14-15. Last, the appellant argues in the
alternative that the Board failed to provide an adequate statement of reasons or bases for determining
that the duty to assist was satisfied. Id. at 15-17.
In his initial brief, the Secretary argues that VA did not need to submit a request for
verification of a stressor to the JSRRC as the appellant did not provide the minimum requested
information to facilitate a search, that is, the appellant did not narrow the time period in which the
event occurred to a period of 60 days or less. Appellee's Br. at 3-8. The Secretary argues further
that M21-1MR, permits RO adjudicators to deny a claim for service connection for PTSD "if the
claimant fails to provide the minimum information required to conduct research," and that the
JSRRC's research is limited to a range of 30 days before and 30 days after a given date. Id. at 5(quoting M21-1MR, pt. IV, ch.1, sec.D.15).
However, at oral argument the Secretary conceded that remand was necessary but did not
agree that the M21-1MR provision should be invalidated. After oral argument, the Secretary filed
a memorandum with the Court that clarified his position, stating that the duty to assist was not
satisfied in this case and the matter should be remanded for VA to ask the JSRRC to conduct
multiple searches of the appellant's chronological records in enough 60-day increments to cover the
entire relevant service period. Secretary's Memorandum at 1-3. Also at oral argument, counsel for
the appellant rejected entering into a joint motion for remand because she believed the M21-1MR
provision was invalid and her client seeks a precedential decision that would guide similarly situated
veterans in the future.
III.
A.
A non-combat veteran seeking service connection for PTSD must establish (1) a current
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medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current
symptomatology and the claimed in-service stressor; and (3) credible supporting evidence that the
claimed in-service stressor actually occurred. See 38 C.F.R. § 3.304(f). A non-combat veteran
cannot establish the occurrence of an in-service stressor through his own lay testimony alone–rather,
such a claimant must provide "credible supporting evidence." Doran v. Brown, 6 Vet.App. 283, 290
(1996).
The VA Adjudication Procedures Manual (M21-1MR) provides that before the JSRRC can
search for records to corroborate the occurrence of a stressor, a veteran must provide at a minimum,
a stressor that can be documented, the location where the incident took place, the
approximate date (within a two-month period) of the incident, and the unit of
assignment at the time the stressful event occurred.
M21-1MR, sec. IV.ii.1.D.2.g. M21-1MR instructs RO adjudicators that they may deny a claim for
service connection if the veteran cannot provide the "minimum information required to conduct
research" and notice has been sent to the veteran advising him of what information is still required.
M21-1MR, sec. IV.ii.1.D.2. M21-1MR further provides that the JSRRC will only research records
dated 30 days before and 30 days after the specific date identified in the records request. M21-1MR,
sec. IV.ii.1.D.3.d.
At oral argument, counsel for the Secretary informed the Court that M21-1MR's 2-month or
60-day requirement was adopted at the suggestion of the JSRRC. The military records in the
possession of the JSRRC are not stored electronically, and are organized first by unit designation,
then by date. See THE U.S. ARMY & JOINT SERVICES RECORDS RESEARCH CENTER STRESSOR
VERIFICATION GUIDE, C&P SERVICE TRAINING AND DATA MANAGEMENT. SEC. III (2006) (Stressor
Verification Guide). According to the Stressor Verification Guide, the requirement that a research
record request be narrowed to a 60-day period was put forth in an effort to reduce the workload on
the mere 13 full-time JSRRC staff members tasked with searching those records by hand. Id.B.
In the Veterans Claims Assistance Act of 2000 (VCAA), Congress set forth the scope of the
Secretary's duty to assist veterans in developing their claims for benefits. See Pub. L. No. 106-475,
§ 3(a), 114 Stat. 2096, 2097 (2000). Codified at 38 U.S.C. § 5103A, the act provides, among other
things, that with regard to disability compensation claims, the Secretary shall obtain
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[t]he following records if relevant to the claim:
(A) The claimant's service medical records and, if the claimant has furnished the
Secretary information sufficient to locate such records, other relevant records
pertaining to the claimant's active military, naval, or air service, that are held or
maintained by a governmental entity
....
(2) Whenever the Secretary attempts to obtain records from a Federal department or
agency under this subsection, the efforts to obtain those records shall continue until
the records are obtained unless it is reasonably certain that such records do not exist
or that further efforts to obtain those records would be futile.
See 38 U.S.C. § 5103A(c)(2) (emphasis added).
The legislative history of the act shows that a paramount concern of Congress was to undo
the results of this Court's decision in Morton v. West, 12 Vet.App. 477 (1999), which barred VA
from assisting a veteran in presenting his claim until he offered sufficient evidence to show that his
claim was "well grounded." See 146 Cong. Rec. S9211-02 (remarks of Sen. Specter). The statute
was implemented through 38 C.F.R. § 3.159, which provides that
VA will make as many requests as are necessary to obtain relevant records from a
Federal department or agency. These records include but are not limited to military
records, including service medical records; medical and other records from VA
medical facilities; records from non-VA facilities providing examination or treatment
at VA expense; and records from other Federal agencies, such as the Social Security
Administration. VA will end its efforts to obtain records from a Federal department
or agency only if VA concludes that the records sought do not exist or that further
efforts to obtain those records would be futile. Cases in which VA may conclude
that no further efforts are required include those in which the Federal department or
agency advises VA that the requested records do not exist or the custodian does not
have them.
See 38 C.F.R. § 3.159(c)(2)(2015) (emphasis added); see also Todd v. McDonald, 27 Vet.App. 79,
87 (2014) (quoting 38 C.F.R. § 3.159(c)). The implementing regulation states further that the
veteran must, on the VA's request, provide "enough information to identify and locate the existing
records, including . . . the appropriate time frame covered by the records," and when the records
sought might corroborate an in-service stressor event, "the claimant must provide information
sufficient for the records custodian to conduct a search of the corroborative records." 38 C.F.R. §
3.159(c)(2)(i)(2015). The regulatory language does not describe what information is "sufficient"
to enable the custodian to search corroborative records, nor does it grant authority to the custodian
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of records or VA to set those parameters.
It is thus clear from the commands of the enabling statute that VA's duty to search for records
that would assist a veteran in the development of his claim, and for which the veteran has provided
the Secretary information sufficient to locate such records, includes making as many requests as are
necessary and ends only when such a search would become "futile." Neither the statute nor the
implementing regulation provide a definition of "futile," but the U.S. Court of Appeals for the
Federal Circuit has held that the word "futile" in 38 C.F.R. § 3.159 may be defined by its plain
meaning and the two examples of futile searches provided in the regulatory language. See Paralyzed
Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1359 (Fed. Cir. 2003). The dictionary
definition of "futile" is "serving no useful purpose; completely ineffective." See MERRIAM-
WEBSTER'S COLLEGIATE DICTIONARY 475 (10th ed. 2002). The legislative history of the VCAA
supports a reading of the term "futile" as referring to the likelihood the search will generate results,
as opposed to the difficulty of the search. See 146 Cong. Rec. S9211-02, (remarks of Sen.
Rockefeller) (it is "important to balance this duty [to assist] against the futility of requiring VA to
develop claims where there is no reasonable possibility that the assistance would substantiate the
claim"). Thus, the Court concludes that the term "futile," for purposes of determining the limits of
the VA's duty to assist under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159, means a search where it is
apparent that the sought-after records are either not in existence or not in the possession of the
record's custodian. See Paralyzed Veterans, 345 F.3d at 1359.
IV.
The Court agrees with both parties that the Board failed to ensure that the duty to assist was
satisfied because the appellant provided information sufficient to locate records – reports of a
military vehicle accident involving the appellant while the appellant was assigned to the 91st
Engineer Company in Vietnam from July 1967 to September 1968 that resulted in the serious injury
or death of a soldier, – but VA did not, at the very least, submit multiple requests to the JSRRC, each
covering a different 60-day period. The statutory duty to assist requires that VA "continue" to try
to obtain records in the possession of a government agency until such a search becomes "futile," and
the Court has determined that "futile" means a search for service records that either no longer exist
or are not in the custodian's possession. 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). The
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language of the duty-to-assist statute clearly states that when the veteran provides information
sufficient to locate service records that are in the possession of a government agency and that might
help the veteran's claim, VA "shall continue" to search for such records "unless it is reasonably
certain that such records do not exist or that further efforts to obtain those records would be futile."
38 U.S.C. § 5103A(c)(2). The implementing regulation supports the conclusion that to fulfill his
duty to assist the Secretary must make as many research record requests as are necessary and that
a search for records is "futile" only when it becomes clear the record does not exist or is not in the
possession of the custodian. 38 C.F.R. § 3.159(c)(2).
In this case, the Board found that RO properly declined to ask the JSRRC search for records
to corroborate the appellant's stressor event not because it determined the records did not exist, or
were not in the possession of the JSRRC, but because the RO determined that "the information
required to corroborate the stressful events described by the veteran was insufficient to send" to the
JSRRC. R. at 13. While neither the Board nor the RO specifically cited the relevant portions of
M21-1MR, the May 18, 2010, letter and April 17, 2010, memorandum clearly relied on M21-1MR
as the RO's position was that unless the appellant narrowed the date of his stressor events to a 2-
month or 60-day period, VA would not issue a record request to the JSRRC. See R. at 90-93; M21-1
MR Secs. IV.ii.1.D.14.f ; IV.ii.D.15.k; IV.ii.D.15.c. However, the fact that multiple records
searches would burden JSRRC employees does not mean that those efforts would be "futile," and
thus the Board's conclusion violates the statutory duty to assist. 38 U.S.C. § 5103A(c)(2); 38 C.F.R.
§ 3.159(c)(2).
As the parties now agree, the duty to assist required VA to submit multiple 60-day record
searches in this matter. 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). The Secretary is unable
to establish that further efforts to obtain verification of the appellant's alleged stressors would be
"futile." Id. The Court holds that the Board clearly erred in finding the duty to assist satisfied, when
even though VA failed to submit to the JSRRC multiple requests for records to cover the appellant's
relevant service period, each encompassing a different 60-day range. 38 U.S.C. § 5103A(c)(2); 38
C.F.R. § 3.159(c)(2).
V.
To be sure, the Court does not suggest that the duty to assist requires unlimited searches or
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so-called "fishing expeditions" over an indefinite period of time, see Gobber v. Derwinski, 2
Vet.App. 470, 472 (1992) ("The 'duty to assist' is not a license for a 'fishing expedition' to determine
if there might be some unspecified information which could possibly support a claim,") but this case
is not an example of such an expedition. The only reason provided by the Secretary for not
requesting a JSRRC records search is that the appellant could not narrow the timeframe of his
reported stressor to a 2 month period. We do not question the requirement that JSRRC searches are
to be done within 2 month periods, but we also do not find the 13-month period in this case to be
unreasonably long, given the particulars of the stressor provided by the appellant. Accordingly,
remand is warranted for VA to comply with its statutory duty to assist by submitting to the JSRRC
multiple requests for records of a stressor event, each encompassing a different 60-day range, to
cover the appellant's relevant service period from August 1967 to August 1968 as a truck driver with
the 91st Engineer Company.
VI.
After consideration of the appellant's and the Secretary's pleadings, and a review of the
record, the Board's November 8, 2013, decision is VACATED and the matter is REMANDED for
VA to submit to the JSRRC multiple requests for records of the stressor event, each encompassing
a different 60-day range, to cover the appellant's relevant service period from August 1967 to August
1968 as a truck driver with the 91st Engineer Company. Because the Court is remanding the matter,
it will not address the appellant's remaining arguments. See Dunn v. West, 11 Vet.App. 462, 467
(1998). On remand, the appellant may present, and the Board must consider, any additional
evidence and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). VA must proceed
expeditiously, in accordance with 38 U.S.C. § 7112 (requiring the Secretary to provide for
"expeditious treatment" of claims remanded by the Court).
DATED: October 19, 2015
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