David R. Gagne v. Robert A. McDonald

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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