Veteranclaims’s Blog

May 2, 2011

Single Judge Application, 38 C.F.R. 3.159(c)(3); (e); Washington v. Nicholson, 19 Vet. App. 362, 370-71 (2005)

Excerpt from decision below:
“Pursuant to 38 C.F.R. § 3.159(c)(3)(2010), Agency decisionmakers are
directed to make efforts to obtain relevant military records, and if such records are not available, the claimant must be informed that such records were not available. Furthermore, such unobtainable records should be identified, an explanation as to what efforts were made to get those records, a description of what further action VA will take and notice that the claimant is ultimately responsible for obtaining such
records. 38 C.F.R. § 3.159(e); see also Washington v. Nicholson, 19 Vet. App. 362, 370-71 (2005)(explaining that VA failed to fully discharge its duty to assist because appellant was not adequately advised as to alternative forms of information and evidence that he could use to establish his claim).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0183
ANTHONY E. BONNER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before HOLDAWAY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

HOLDAWAY,Judge: Before the Court is the October26, 2009, Board
of Veterans’ Appeals (Board) decision that denied entitlement to service connection for post-traumatic stress disorder(PTSD). Single-judge disposition is appropriate when the issue is of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
reasons that follow, the Court will vacate the October 2009 Board decision
and remand the matter for readjudication.

I. FACTS
The appellant had active dutyservice from August 1981 to August 1984.
Record (R.) at 123.
His service medical records are negative for anycomplaints or treatment
for a psychiatric condition.
R. at 162-200.
InMay2005,theappellantsubmittedaclaimforentitlementtoserviceconnection
forPTSD.
R. at 430. In July2005, the appellant submitted a statement indicating
that he was assigned to “HHC
1st Bn, 13th Armor, 3rd Armor Division.” R. at 399. He stated that “we
were ending a thirty day
training mission, as the soldiers were preparing to leave the training
area, one of them slipped off
the tank into hydr[au]lic swee[p]per caus[e]ing him to be seriouslyinjured,
broken-up and mawed.”

Id. He also reported that the incident occurred on April 20, 1983, and
that the solider involved in
the incident was in the “HHC 1/13th Armor Division.” R. at 399-400.
However, he did not state
the name of the solider involved. Id.
The regional office (RO) denied entitlement to service connection for PTSD
in September
2005. R. at 415-19. In October 2005, the appellant submitted a Notice of
Disagreement (NOD) and
attached a medical record in which a private examiner reported that he
diagnosed the appellant with
PTSD and chronic depression. R. at 408-12. The examiner reported that the
appellant’s PTSD was
caused by witnessing a “severe accident in Germany while on a field
training mission.” R. at 409-
10. In a September 2005 statement also attached to the appellant’s NOD, Mr.
Frankie Gwynn also
stated that he served with the appellant in Germany and while on a 30-day
training mission in
Hornsphelt, Germany, one of the “soldiers slipped and fell into the
sweepers which caused him to
revolve around the [s]weeper a number of times, causing a terrible
grinding noise and him to be
broken up and mawed continuously.” R. at 412. Mr. Gwynn related that
unlike the appellant, he was
“not right at the scene of the accident” but arrived on the scene
afterwards. Id. The appellant also
attached a stressor statement to his NOD. R. at 411. He stated that on or
about April 1983 while
he was on a 30-day field training mission in Hornsphelt, Germany, he
witnessed a severe accident
involving hydraulic sweepers attached to tanks. Id. He again related that
a “solider slipped and fell
into the sweeper, rotating him around and around several times, creating a
terrible grinding and
crunching noise.” Id.
In May 2006, the RO advised the appellant that verification of his alleged
stressor required
that he provide the full name and unit designation of the injured solider.
R. at 329. The appellant
responded that he did not know the soldier’s name or Social Security
number, but stated that the
“company’s name” was “HHC 1/13th Armor Division, Illishime Germany APO NY
09140-741.”
R. at 308. He noted that the date was April 1982. Id.
In June 2006, the RO submitted a request for information to verify the
appellant’s PTSD
stressor using the date April 1983. 1
R. at 306. The appellant filed his Substantive Appeal in May
2007. R. at 44.
1
Notably, just prior to this request for information, the appellant claimed
that his stressor took place in
April 1982, instead of the previously asserted April 1983.
2

In September 2008, in response to the June 2006 VA request for
information, the VA
coordinator with the U.S. Army and Joint Service Records Research Center (
JSRRC) made a
“[f]ormal finding of a lack of information required to corroborate
stressor(s) associated with the
claim for service connection for PTSD.” R. at 25-26. The coordinator
stated that the information
required to corroborate the stressful event described by the appellant was
insufficient to send to
JSRRC and/or insufficient to allow for meaningful research of Marine Corps
or National Archives
and Records Administration records. Id. The coordinator stated that “[w]
hen researching casualty
information, both the last and first names should be given” and that dates
and units are also helpful.
Id. The coordinator further stated that “no listing of casualties by units
is currently available” and
that “JSRRC would not be able to provide any additional information about
if the veteran was
involved in the incident that resulted in casualties.” Id. He concluded
that the appellant did not
provide enough information or details of events for JSRRC to research. Id.
In October 2009, the Board denied entitlement to service connection for
PTSD. R. at 3-10.
This appealed followed.
II. ANALYSIS
Pursuant to 38 C.F.R. § 3.159(c)(3) (2010), Agency decisionmakers are
directed to make
efforts to obtain relevant military records, and if such records are not
available, the claimant must
be informed that such records were not available. Furthermore, such
unobtainable records should
be identified, an explanation as to what efforts were made to get those
records, a description of what
further action VA will take and notice that the claimant is ultimately
responsible for obtaining such
records. 38 C.F.R. § 3.159(e); see also Washington v. Nicholson, 19 Vet.
App. 362, 370-71 (2005)
(explaining that VA failed to fully discharge its duty to assist because
appellant was not adequately
advised as to alternative forms of information and evidence that he could
use to establish his claim).
In the decision on appeal, the Board concluded that it was “satisfied VA [
had] made
reasonable efforts to obtain relevant records and evidence.” R. at 6. The
Board also found that the
appellant “was an active participant in the claims process and he
responded to VA’s request for
information . . . . Any error in notice is not shown to have affected the
essential fairness of the
adjudication or to cause Previous DocumentinjuryNext Document” to the appellant. R. at 7. The Secretary
argues and the appellant in
3

his reply brief agrees that remand is necessary because the Board failed
to provide an adequate
statement of reasons or bases for its finding that VA had fulfilled its
duty to notify and assist the
appellant. Secretary’s Brief (Br.) at 4; Appellant’s Reply Br. at 1.
The Secretary notes that the appellant was never notified of the finding
by the coordinator
in September 2008 that not enough information was provided for JSRRC to
research the appellant’s
alleged stressor, and he was never advised that he could submit
alternative sources of evidence to
corroborate his stressor. Secretary’s Br. at 6. Although the RO asked the
appellant for more specific
information regarding his stressor in a May 2006 letter, the Secretary
notes that at that time he was
not advised of any alternative evidence that he could submit. Secretary’s
Br. at 6 (citing R. at 329).
The Secretary concedes that in light of the fact that the appellant was
never advised he did not
provide sufficient information for JSRRC to perform a meaningful search to
corroborate his alleged
stressors and that he was never notified as to alternative forms of
information and evidence he could
submit to establish his claim, the basis for the Board’s finding that VA
fulfilled its duty to notify and
assist is unclear. 38 U.S.C. §§ 5103, 5103(A); see also 38 C.F.R. § 3.
159.
The Court agrees and will remand the appellant’s claim for entitlement to
service connection
for PTSD. In pursuing his case on remand, the appellant may present, and
the Board must consider,
any additional evidence and argument in support of the matters remanded.
See Kay v. Principi,16
Vet.App. 529, 534 (2002). These matters are to be provided expeditious
treatment on remand. See
38 U.S.C. § 7112.

III. CONCLUSION
Upon consideration of the foregoing, the parties’ briefs, and the record
on appeal, the
October 26, 2009, Board decision is VACATED and the matter is REMANDED for
further
proceedings consistent with this decision.
DATED: April 25, 2011
Copies to:
Anthony E. Bonner
VA General Counsel (027)
4

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