Veteranclaims’s Blog

June 6, 2014

Single Judge Application; Tatum v. Shinseki, 26 Vet.App. 443, 451(2014); Ambiguously Worded RO Request Letters

Excerpt from below:

“Here, in attempting to obtain a police report for the MVA, the RO notified  the LPD that veteran Daren L. Englund had a “driver’s accident” and requested “a complete copy of the veteran’s police report.” R. at 739 (emphasis added). The response from the LPD  indicated only that it had been unable to find “records for Daren L. Englund.” R. at 737. The letter did not indicate whether the LPD had conducted a search based on the date of the MVA or any other search criteria. Id.
Although the RO’s letter had also identified the date of the accident and noted that it was unclear whether or not Mr. Englund was the driver, the otherwise ambiguous language of the RO letter, accompanied by the wording of the LPD response, created the impression that the LPD searched only for records using Mr. Englund’s name. Further, at his Board hearing, Mr. Englund indicated that his name would not have been part of an LPD report because he never talked to the police: “That’s why I believe they can’t come up with records[:] because I was not driving the vehicle. You know, they’re not coming up with my name or anything.” R. at 40.
Faced with the RO’s ambiguously worded request, the LPD’s response  indicating it may have searched its records only for Mr. Englund’s name and not for the date of the accident or any other potential search terms, and Mr. Englund’s identification to the Board of the potential issue, the Secretary’s inaction failed to satisfy the duty to assist. See Tatum v. Shinseki, 26 Vet.App. 443, 451(2014) (“[W]hen a claimant informs the Secretary that records appear to be missing, the Secretary should, at a minimum, respond to the claimant.”); Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 300 (2008) (“[T]he content of information and evidence received by VA may require an appropriate response, consistent with the duty to assist.”); Godwin v. Derwinski, 1 Vet.App. 419, 425 (1991)(“Inherent in the duty-to-assist obligation . . . is a requirement for the Secretary to respond to a claimant’s request for VA assistance one way or the other”), abrogated on other grounds by McGinnis v. Brown, 4 Vet.App. 239 (1993); 38 C.F.R. § 3.159(e)(1).
VA’s failure to follow-up with the LPD was particularly significant given the dearth of
contemporaneous records relevant to the MVA and its aftermath. See R. at 15 (the Board notes that
10

a line of duty determination regarding an MVA on May15, 1982, could not be located); R. at 18 (the Board notes that the medical records did not indicate whether Mr. Englund
was the driver or the passenger); R. at 519 (the RO makes a formal finding of unavailability of
Fort Polk clinical records from 1982). Further, if there is an LPD report for a May 15, 1982, MVA, but no record bearing Mr. Englund’s name, it would appear to be consistent with Mr. Englund’s assertion that another person was driving the car involved in the MVA and that Mr. Englund never talked with police.
Given the current state of the record, and the fact that the Board’s finding of willful
misconduct appears to depend on its conclusion that Mr. Englund was the driver, determining
whether a police report for the MVA exists is not only potentially relevant but central to the Board’s decision on Mr. Englund’s claims. See Schafrath, 1 Vet.App. at 593-94.
Under the circumstances, the Board’s finding that the duty to assist had been satisfied, without taking the step of clarifying with the LPD whether it had performed searches that might locate a police report without relying on Mr.Englund’s name, was clearly erroneous. See Nolen, 14 Vet.App. at 184.”

===============

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-0808
DAREN L. ENGLUND, APPELLANT,
V.
SLOAN D. GIBSON,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Judge: VeteranDaren L. Englund appeals through counsela
February20, 2013,
Board of Veterans’ Appeals (Board) decision denying service connection for
head injury, memory
loss, headaches, an acquired psychiatric disorder to include bipolar
disorder, and seizures. Record
(R.) at 3-22. This appeal is timely and the Court has jurisdiction to
review the Board’s decision
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition
is appropriate in this case.
See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons
that follow, the Court will
setasidetheFebruary2013Boarddecisionandremandthemattersforreadjudicationco
this decision.
I. FACTS
Mr. Englund served on active duty in the U.S. Armyfrom May1980 to May1983.
R. at 642.
On the evening of May 15, 1982, he was involved in a motor vehicle
accident (MVA) in Leesville,
Louisiana, in which his car went off the road and hit a tree. R. at 1045,
578. An emergency room
(ER) treatment note states that he suffered a deep scalp laceration,
multiple contusions, and a
cervical spine strain. R. at 1045. The note states that he was conscious
upon ER arrival, was able

to provide a medical history, and had alcohol on his breath. Id. At the
time of his release from
service, he declined a separation medical examination. R. at 1066-67.
In November 2001, Mr. Englund filed a claim for service connection for
head injury,
forehead scar, memory loss, numbness to the right side of the head,
headaches, and short-term
blackouts. R. at 1369-78. In December 2001, during a VA mental health
examination, he reported
a history of alcohol abuse. R. at 1348-49. He stated that in 1983, while
stationed at Fort Polk in
Louisiana, he was “drunk and in a car wreck” where he suffered a head
wound. R. at 1348. He
reported that this event was “the first time he realized he had problems
with alcohol.” Id. In
February2002, the VA regional office (RO) denied his claims, finding that
the MVA that caused his
injuries was a result of the veteran’s willful misconduct. R. at 1316-21.
He did not appeal this
decision.
In November 2009, Mr. Englund filed a request to reopen his head injury
and memory loss
claims. R. at 1031-32. He stated that he was a passenger, not the driver,
during the in-service MVA.
R. at 1031-32. In December 2009, he filed claims for bipolar disorder,
seizures, and severe
headaches, stemming from the same May 1982 MVA. R. at 912-14. In that
filing, he reiterated that
he was not the driver and stated that the MVA was “not [his] fault.” R. at
914. He also stated that
following the MVA he went on medical leave for 30 days and that when he
returned to base he
discovered that the MVA driver had been dishonorably discharged. R. at 914.
The RO denied the claims in January 2010, finding that new and material
evidence had not
been submitted to reopen the claims for service connection for head injury,
memory loss, and
headaches and denying serviceconnection for bipolar disorder and seizures.
R. at 812-17. Later that
month, Mr. Englund filed a Notice of Disagreement. R. at 799-800.
In April 2010, the RO contacted the Leesville Police Department (LPD) via
letter in an
attempt to obtain the MVA police report. R. at 739-40. The RO letter
stated that Mr. Englund, who
was referred to by name and Social Security number, “had a driver[‘]s
accident on May 15, 1982.”
R. at 739. The letter further stated that the ER report did not show
whether Mr. Englund was the
driver in the MVA. Id. The letter requested “a complete copy of the
veteran’s police report
concerning the accident of May 15, 1982.” Id. Later in April 2010, the LPD
responded byletter that
stated, in its entirety, “At this time our department was unable to locate
records for Daren L.
2

Englund. We will continue to search our archives and if records are found
will forward to you.” R.
at 737. In May 2010, the RO sought the veteran’s service personnel record
and received it in June
2010. R. at 609.
In July 2010, the RO issued an administrative decision finding that the
veteran’s head injury
was incurred in a May 1982 MVA that was the result of willful misconduct.
R. at 605-08. The RO
noted that Mr. Englund had a historyof drunk driving and substance abuse
and that the ER treatment
note stated that he had alcohol on his breath. Id. The RO stated, “we
cannot ascertain with certainty
whether the veteran was a driver or merely a passenger,” but nevertheless “
the preponderance of
evidence suggests his alcoholism directly contributed to the accident.” R.
at 608. The RO issued
a Statement of the Case (SOC) in July 2010, continuing to deny service
connection for bipolar
disorder and seizures and declining to reopen claims for service
connection for head injury, memory
loss, and headaches. R. at 577-602. In September 2010, he perfected his
appeal to the Board. R.
at 573-74.
In November 2010, Mr. Englund testified at a decision review officer
hearing. R. at 534-44.
He stated that on the day of the MVA he and another servicemember had been
fishing, and he let the
other servicemember drive back to Fort Polk, which was when the accident
occurred. R. at 535. Mr.
Englund statedthathis headwentthroughthewindshield,
hewasknockedunconscious,andhewoke
up in the hospital. Id. He stated that following the accident he was
placed on 30 days’ leave, then
returned to base and found that the driver of the vehicle had been
dishonorably discharged in
connection with the MVA. Id.
In February 2011, Mr. Englund submitted statements from his brother and
sister. R. at 524-
27. His brother stated that he had spoken with Mr. Englund several times
since the MVA and that
he had always said he was the passenger and he went head-first through the
windshield. R. at 524.
His sister stated that she was present when Mr. Englund came home on leave
in 1982 and that his
statement about the MVA had always been that he was the passenger and that
his head went through
the windshield. R. at 526.
In March 2011, the RO made a formal finding of unavailability of Fort Polk
clinical records
from 1982. R. at 519. In a May2011 Supplemental SOC (SSOC), the RO
continued to denyservice
3

connection for bipolar disorder and seizures and continued to find no new
and material evidence had
been submitted to reopen claims for head injury, memory loss, and
headaches. R. at 76-81.
In November 2011, Mr. Englund testified at a Board hearing, repeating his
account of the
MVA from the November 2010 hearing. R. at 36-50. He stated that, while
fishing:
I ran into some gentleman that was having a cookout there and it was a
friend of
mine. I can’t remember his name or anything like that, but he says, well,
I’ll just give
you–I’ll drive your vehicle and we’ll go back to post . . . . And the
next thing you
know, he had hit a tree, okay.
R. at 39. Mr. Englund reiterated that he was unconscious when he arrived
at the hospital. Id. When
he returned to service, he learned that his vehicle was in a junk yard
with a “big hole” in the
passenger side, where he had been sitting, and that the driver had been
dishonorably discharged. Id.
He did not know whether the driver had been ticketed for the MVA, did not
know what unit the
driver was in, and did not recall ever being asked to give a statement
describing what happened in
the MVA. R. at 45-46. Later in the same hearing he referred to the driver
as “an acquaintance.” R.
at 46. Regarding the absence of a police report, he stated he never
communicated with the LPD
because he wasn’t responsible for the accident, and “[t]hat’s why I
believe [the LPD] can’t come up
with records[:] because I was not driving the vehicle. You know, they’re
not coming up with my
name or anything.” R. at 40. In the decision on appeal, the Board found
that new and material
evidence had been presented to reopen claims for service connection for
head injury, memory loss,
and headaches; denied service connection for those three claims on the
merits; and denied service
connection for seizures and an acquired psychiatric disorder to include
bipolar disorder. R. at 4. As
to the duty to assist, the Board found that VA had made all reasonable
efforts to obtain relevant
records and that no additional RO action was necessary to develop the
record. R. at 8. As to the
merits of the claims, the Board found that the injuries underlying all
claims were suffered in a 1982
in-service MVA but denied the claims based on a finding that the MVA was “
a result of [Mr.
Englund’s] own willful misconduct due to alcohol abuse.” R. at 5.
The Board noted Mr. Englund’s statements to the effect that he was a
passenger but found
them not credible, citing inconsistencies between those statements and the
other evidence of record.
R. at 17-20. Specifically, the Board noted the December 2001 mental health
examination report, in
which the veteran stated that he had been drunk and in a crash and that
this had been the first time
4

he realized he had problems with alcohol. R. at 19. The Board found that
the veteran “appear[ed]
to be linking the cause of the accident to his use of alcohol” and
questioned why the MVA would
cause him to conclude he had a problem with alcohol if he had merelybeen a
passenger. R. at 19-20.
The Board noted that his statement about losing consciousness and waking
in the hospital
contradicted the ER treatment note stating he was conscious on admittance.
R. at 18. The Board
also noted that, despitedescribingthedriver as an acquaintance, the
veteran did not know the driver’s
name, what unit he was assigned to, or whether he was ticketed for the MVA,
and the veteran was
never asked to provide a statement regarding the incident, which was
especially “odd” given his
statement that the driver was dishonorably discharged as a result of the
MVA. R. at 19. The Board
noted that the ER treatment note stated that the veteran had alcohol on
his breath following the MVA
and that, apart from the MVA, the veteran had multiple alcohol-related
incidents during service that
resulted in bodily harm or disciplinary action. R. at 19. The Board found
the sibling statements to
be of limited probative value because they were dependent on a history
provided by Mr. Englund,
which the Board had already found lacking in credibility. R. at 20. This
appeal followed.
II. ANALYSIS
Mr. Englund argues on appeal that (1) the Board clearly erred in
determining that the MVA
was the result of willful misconduct and that (2) the Board’s statement of
reasons or bases is
inadequate because, even assuming that the Board did not clearly err in
determining that he was the
driver, the Board failed to discuss whether he was intoxicated during the
MVA or whether his
supposed intoxicated driving was the proximate cause of the injuries.
Appellant’s Brief (Br.) at 11-
23. The Secretary argues that (1) the Board did not clearly err in
determining that Mr. Englund’s
statements lacked credibilityor that his willful misconduct caused his
injuries and that (2) the Board
adequately discussed the evidence relevant to a finding of willful
misconduct in its statement of
reasons or bases. Secretary’s Br. at 6-22. The Court agrees with Mr.
Englund that the Board’s
statement of reasons or bases is inadequate, necessitating remand.
A. Willful Misconduct
Toestablishentitlementto serviceconnection, aclaimantgenerallymustshow(1)
competent
and credible evidence of a current disability; (2) medical or lay evidence
of in-service incurrence or
5

aggravation of a disease or injury; and (3) competent and credible
evidence of linkage between the
in-service disease or injury and the present disability. Shedden v.
Principi, 381 F.3d 1163, 1167
(Fed. Cir. 2004); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per
curiam, 78 F.3d 604 (Fed.
Cir. 1996) (table). With respect to the second of these elements, veterans
are entitled to a
presumption that injuries incurred during active service occurred in the
line of duty and were not the
result of willful misconduct. 38 U.S.C. § 105(a) (“An injury or disease
incurred during active
military, naval, or air service will be deemed to have been incurred in
line of duty and not the result
of the veteran’s own misconduct . . . .”); Holton v. Shinseki, 557 F.3d
1362, 1367 (Fed. Cir. 2009)
(“[S]ection 105(a) creates a presumption that a veteran’s in-service
injury or disease did not result
from his own misconduct.”).
To rebut the presumption, the government must demonstrate by a
preponderance of the
evidence that injuries incurred during active service were caused by
willful misconduct or were
caused by abuse of alcohol or drugs. Holton v. Shinseki, 557 F.3d 1362,
1367 (Fed. Cir. 2009) (the
section 105(a)line of dutypresumption “can be rebutted onlyif the
government shows that the injury
or disease was caused by the veteran’s own willful misconduct or abuse of
alcohol or drugs.”);
Thomas v. Nicholson, 423 F.3d 1279, 1283 (Fed. Cir. 2005) (supporting
preponderance of the
evidence as the proper evidentiary standard to rebut the line of duty
presumption); Myore v. Brown,
9 Vet.App. 498, 503 (1996) (remanding the Board’s denial of benefits based
on willful misconduct
finding where “[t]he Board did not support its denial in this casebya
finding that willful misconduct,
under 38 U.S.C. § 105(a) and 38 C.F.R. § 3.1(n)(1), was shown by a
preponderance of the
evidence”).
The government bears the burden of showing the act allegedly constituting
willful
misconduct was “an act involving conscious wrongdoing or known prohibited
action”; “[i]t involves
deliberate or intentional wrongdoing with knowledge of or wanton and
reckless disregard of its
probable consequences.” 38 C.F.R. § 3.1(n)(1) (2013). Further, the
government must show the
alleged act was “the proximate cause of injury, disease or death.” 38 C.F.
R. § 3.1(n)(3); see
38 C.F.R. § 3.301(c)(2) (2013) (“The simple drinking of alcoholic
beverage is not of itself willful
misconduct. . . . If, in the drinking of a beverage to enjoy its
intoxicating effects, intoxication results
proximately and immediately in disability or death, the disability or
death will be considered the
6

result of the person’s willful misconduct.”) (emphasis added). Where the
Board fails to adequately
explain its willful misconduct finding as to a required element, remand is
required. See Myore,
9 Vet.App. at 503-04 (remand required where Board failed in its statement
of reasons or bases to
identify veteran’s “specific conscious wrongdoing or known prohibited
action,” as required under
§ 3.1(n)(1)).
The Board’s determination as to service connection is a factual finding
that the Court reviews
for clear error. 38 U.S.C. § 7261(a)(4); Rose v. West, 11 Vet.App. 169,
171 (1998). As with any
material issue of fact and law presented on the record, the Board must
support its service connection
determination with an adequate statement of reasons or bases that enables
the claimant to understand
the precise basis for that determination and facilitates informed review
in this Court. 38 U.S.C.
§ 7104(d)(1); Washington v. Nicholson, 19 Vet.App. 362, 366-67 (2005).
The Board must analyze
the credibility and probative value of evidence, account for evidence that
it finds persuasive or
unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant. Caluza, 7 Vet.App. at 507; Allday v. Brown, 7 Vet.App. 517, 527 (
1995). Merely listing
evidence before stating a conclusion does not constitute an adequate
statement of reasons or bases.
Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007). Where the Board’s
statement of reasons or bases
is inadequate, remand is appropriate. Tucker v. West, 11 Vet.App. 369, 374 (
1998).
Here, the Board’s reasons or baseswereinadequateto supportafindingof
willful misconduct
because, assuming–without deciding–the propriety of the Board’s
determination that Mr. Englund
was the driver, the Board failed to discuss proximate causation, a
required element for the
government to meet its burden. See 38 C.F.R. § 3.1(n)(3). Mr. Englund’s
car apparently hit a tree,
causing his head to impact the windshield. R. at 535. Again, assuming,
without deciding, that Mr.
Englund was the driver, the Board did not discuss what evidence led it to
believe that Mr. Englund’s
misconduct caused the MVA. See Smith v. Derwinski, 2 Vet.App. 241, 244 (
1992) (although the
record showed that the veteran who died in a motorcycle accident had
consumed alcohol and had
driven “very fast” and “in an unsafe manner,” the record was “devoid of
direct evidence that any of
these circumstances . . . were the proximate cause of the accident that
led to Smith’s injuries and
death”). Although the Board stated several times that the MVA was “a
result of” or “due to” willful
misconduct (R. at 5, 18, 21), citing “alcohol abuse” (R. at 5), the Board
may not rely on alcohol
7

abuse or intoxicated driving per se as proof of proximate causation. See
38 C.F.R. § 3.301(c)(2)
(intoxication only sufficient to establish injuries resulted in willful
misconduct where “intoxication
results proximatelyand immediatelyin disability”); 38 C.F.R. § 3.1(n)(2) (“
Mere technical violation
of police regulations or ordinances will not per se constitute willful
misconduct.”). The Board’s
finding of intoxicated driving is arguably sufficient to establish that Mr.
Englund committed “an act
involving conscious wrongdoing or known prohibited action.” 38 C.F.R. § 3.
1(n)(1). But it is not
sufficient to show, without explanation from the Board, that the known
prohibited action was the
proximate cause of the injuries, a separate element. See Thomas, 423 F.3d
at 1282 (“the presumption
of service connection was rebutted by a preponderance of the evidence
showing that Thomas’s
actionsonAugust 13,1993[,] constitutedwillful misconductandthathis actions
weretheproximate
cause of his injuries”) (emphasis added); Myore, 9 Vet.App. at 503-04; 38
C.F.R. § 3.1(n)(3).
The Board did not make any finding as to whether and to what extent Mr.
Englund’s driving
was impaired due to his alcohol consumption, again assuming he was the
driver at the time of the
MVA. See Smith, 2 Vet.App. at 245 (“What is noticeably missing from the
record is any direct
evidence that Smith’s condition was impaired due to consumption of
alcoholic beverages.”). Nor
did the Board discuss what record evidence led it to conclude that
impaired driving ability due to
alcohol consumption caused the MVA. Compare Smith, 2 Vet.App. at 246 (
eyewitness account that
described Mr. Smith’s consuming alcohol, speeding, and performing “
wheelies” on his motorcycle
“notably offer[ed] no explanation for the actual cause of the accident”),
with Daniels v. Brown,
9 Vet.App. 348, 352 (1996) (proximate causation shown where, in addition
to showing veteran’s
intoxication, “[t]he record contained documentation showing that the
veteran’s automobile rode up
the median and skidded across four lanes of traffic before going through
the guardrail and down into
the lagoon,” the veteran had been “traveling at approximately80 to 85 mph
,” “policedetermined that
speedingwasaprimaryfactorin the accident,” and evidence suggestedthat”
theveteranwasfatigued
at the time of the accident”). Rather, the Board found that Mr. Englund
committed a known
prohibited action and concluded, without any discussion of proximate
causation, that his injuries
were “a result of willful misconduct at that time.” R. at 21; see Myore, 9
Vet.App. at 503.
The relative scarcity of facts surrounding how the MVA occurred does not
relieve the Board
of its burden to adequatelydiscuss proximate causation and explain its
conclusion as to that element.
8

First, as discussed below, the paucity of evidence may be partially the
result of inadequate efforts
by the Secretary to properly develop the record. Second, in the absence of
evidence demonstrating
what caused the MVA, it is presumed that Mr. Englund’s actions did not.
See 38 U.S.C. § 105(a);
Holton, 557 F.3d at 1367 (“[if] the government does not show that the
injuryor disease resulted from
willful misconduct, the veteran has satisfied the second of the three
elements of a compensation
claim–that a disease or injury was incurred in service”). Therefore, in
support of a decision denying
service connection on the basis of willful misconduct, the Board may not
remain silent as to
proximate causation for its reasons or bases to be adequate. If the facts
are insufficient to establish
all the elements of willful misconduct by a preponderance of the evidence,
a finding we do not reach
here, the Board was required to say so. In light of the requirement that
the veteran’s willful
misconduct be the “proximate cause” of injury to negate service connection,
the Board’s omission
of any discussion of proximate causation rendered its statement of reasons
or bases inadequate. See
Myore, 9 Vet.App. 503-04; Smith, 2 Vet.App. at 246.
B. Duty to Assist
Additionally, the Court notes an error in the Board’s determination as to
the duty to assist,
which requires additional development on remand. See Patton v. West, 12
Vet.App. 272, 283 (1999)
(holding that the Court’s directive under 38 U.S.C. § 7261 to “decide all
relevant questions of law”
allows it to raise issues sua sponte); see also Quirin v. Shinseki, 22 Vet.
App. 390, 395 (2009) (noting
that the Court may provide guidance on additional issues to ensure a
proper decision on remand).
The duty to assist obligates the Secretary to assist claimants in
developing their claims, including
making reasonable efforts to obtain all potentially relevant records that
the claimant adequately
identifies. 38 U.S.C. § 5103A(a)(1), (b)(1); Moore v. Shinseki, 555 F.3d
1369, 1372-75 (Fed. Cir.
2009); Schafrath v. Derwinski, 1 Vet.App. 589, 593-94 (1991) (records need
only be potentially
relevant to the claim); 38 C.F.R. § 3.159(c) (2013). As part of the duty
to assist:
VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments . . . and other non-Federal governmental sources. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. A follow-up request is not required if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile.
9

38 C.F.R. § 3.159(c)(1). If the Secretary is unable to obtain potentially relevant records after making reasonable efforts to do so, the Secretary must notify the claimant of that fact. 38 C.F.R. § 3.159(e)(1). Board determinations as to whether the Secretary has fulfilled the duty to assist are findings of fact reviewed for clear error. See Nolen v. Gober, 14 Vet.App. 183, 184 (2000).
Here, in attempting to obtain a police report for the MVA, the RO notified  the LPD that veteran Daren L. Englund had a “driver’s accident” and requested “a complete copy of the veteran’s police report.” R. at 739 (emphasis added). The response from the LPD  indicated only that it had been unable to find “records for Daren L. Englund.” R. at 737. The letter did not indicate whether the LPD had conducted a search based on the date of the MVA or any other search criteria. Id.
Although the RO’s letter had also identified the date of the accident and noted that it was unclear whether or not Mr. Englund was the driver, the otherwise ambiguous
language of the RO letter, accompanied by the wording of the LPD response, created the impression that the LPD searched only for records using Mr. Englund’s name. Further, at his Board hearing, Mr. Englund indicated that his name would not have been part of an LPD report because he never talked to the police: “That’s why I believe they can’t come up with records[:] because I was not driving the vehicle. You know, they’re not coming up with my name or anything.” R. at 40.
Faced with the RO’s ambiguouslyworded request, the LPD’s response  indicating it may have
searched its records only for Mr. Englund’s name and not for the date of
the accident or any other potential search terms, and Mr. Englund’s identification to the Board of the potential issue, the Secretary’s inaction failed to satisfy the duty to assist. SeeTatum v.
Shinseki, 26 Vet.App. 443, 451(2014) (“[W]hen a claimant informs the Secretary that records appear to be missing, the Secretary should, at a minimum, respond to the claimant.”); Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 300 (2008) (“[T]he content of information and evidence received by VA may require an appropriate response, consistent with the duty to assist.”); Godwin v. Derwinski, 1 Vet.App. 419, 425 (1991)(“Inherent in the duty-to-assist obligation . . . is a requirement for the Secretary to respond to a claimant’s request for VA assistance one way or the other”), abrogated on other grounds by McGinnis v. Brown, 4 Vet.App. 239 (1993); 38 C.F.R. § 3.159(e)(1).
VA’s failure to follow-up with the LPD was particularly significant given the dearth of
contemporaneous records relevant to the MVA and its aftermath. See R. at 15 (the Board notes that
10

a line of duty determination regarding an MVA on May15, 1982, could not be located); R. at 18 (the Board notes that the medical records did not indicate whether Mr. Englund
was the driver or the passenger); R. at 519 (the RO makes a formal finding of unavailability of
Fort Polk clinical records from 1982). Further, if there is an LPD report for a May 15, 1982, MVA, but no record bearing Mr. Englund’s name, it would appear to be consistent with Mr. Englund’s assertion that another person was driving the car involved in the MVA and that Mr. Englund never talked with police.
Given the current state of the record, and the fact that the Board’s finding of willful
misconduct appears to depend on its conclusion that Mr. Englund was the driver, determining
whether a police report for the MVA exists is not only potentially relevant but central to the Board’s decision on Mr. Englund’s claims. See Schafrath, 1 Vet.App. at 593-94.
Under the circumstances, the Board’s finding that the duty to assist had been satisfied, without taking the step of clarifying with the LPD whether it had performed searches that might locate a police report without relying on Mr.Englund’s name, was clearly erroneous. See Nolen, 14 Vet.App. at 184.

C. Reversal Not Appropriate
Mr. Englund argues that the Board clearlyerred in determining that his
injuries resulted from
willful misconductandthatreversalwithinstructiontograntserviceconnection
is appropriate,given
that the Board’s denial of all claims was based on its finding of willful
misconduct. Appellant’s Br.
at 17-18. However, remand is the appropriate remedy here. See Tucker, 11
Vet.App. at 374. Until
the Board provides a statement of reasons or bases that adequately
discusses the record evidence as
it pertains to all required elements of a willful misconduct finding,
reversal is not appropriate. See
Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (explaining that
reversal is appropriate
only”where the Board has performed the necessaryfactfinding and
explicitlyweighed the evidence”
and this Court, based “on the entire evidence, . . . is left with the
definite and firm conviction that
a mistake has been committed”). Further, if the Board finds on remand that
the government cannot
carry its burden of showing willful misconduct, and the second Caluza
prong is established, it will
be necessary for the Board to analyze Mr. Englund’s claim under the
remaining Caluza prongs. See
Holton, 557 F.3d at 1367.
Accordingly, the Court will remand the matter for additional development,
as described
above, and for Board review that adequately considers whether Mr. Englund
committed willful
11

misconduct that proximately caused his injuries.1
On remand, Mr. Englund is free to submit any
additional evidence and argument, including the arguments raised in his
brief to this Court, in
accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order), and the
Board must consider any such evidence or argument submitted. See Kay v.
Principi, 16 Vet.App.
529, 534 (2002). The Board shall proceed expeditiously, in accordance with
38 U.S.C. §§ 5109B
and 7112.

III. CONCLUSION
Upon consideration of the foregoing, the Board’s February20,2013,
decisionis SET ASIDE,
and the matter is REMANDED to the Board for further development and
readjudication consistent
with this decision.
DATED: June 3, 2014
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

Mr. Englund argues, and the Secretary agrees, that the Board erred in
referencing a March 2006 VA medical
examination on a disability unrelated to the claims on appeal in its
determination of whether the duty to assist had been
satisfied. Appellant’s Br. at 23-24; Secretary’s Br. at 24-25; see R. at 8.
The Secretary argues that this error was harmless
because the Board’s determination that the duty to assist had been
satisfied was correct notwithstanding this erroneous
citation. Secretary’s Br. at 24-25. The Court agrees with both parties
that the Board’s reference was erroneous, but
because the Court is remanding for additional development pursuant to the
duty to assist, a new statement of reasons or
bases will be necessary, and therefore the Court need not address the
possible effect of the erroneous reference on the
Board’s duty to assist determination.
1
12

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