Veteranclaims’s Blog

January 1, 2016

Single Judge Application; Gagne v. McDonald; VA Duty to Submit Multiple 60-day Record Searches; Court Liberally Interprets Pro Se Briefs;

Filed under: Uncategorized — veteranclaims @ 6:04 pm

Excerpt from decision below:

“Liberally construing the appellant’s informal brief, he argues that the Board failed to provide
an adequate statement of reasons or bases when it determined that VA had satisfied its duty to assist.
Appellant’s Informal (Inf.) Brief (Br.) at 1-3; see De Perez v. Derwinski, 2 Vet.App. 85, 86 (1993)(the Court liberally interprets informal briefs submitted by pro se appellants). Specifically, he argues that the Board failed to discuss whether the duty assignments listed in his service records
were sufficient to identify the time and place of his claimed in-service stressors. Appellant’s Inf. Br. at 1-3.”

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“The Board did not, however, discuss evidence in the record detailing the dates and locations
of the appellant’s service or whether that evidence could provide a sufficiently narrow time window to submit a request to the JSRRC or NARA. See R. at 381 (noting that, between August 1976 and January 1977, the appellant was transferred to San Francisco “FOR OPCON WITH USS MIDWAY”); see also Gagne v. McDonald, __ Vet.App. __, __, No. 14-0334, 2015 WL 6114516, at *7 (Oct. 19, 2015) (holding that “the duty to assist required VA to submit multiple 60-day record searches” to JSRRC and that “the 13-month period in [that] case” was not “unreasonably long”).”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-3424
KENNETH W. DEAN, APPELLANT,
V.
ROBERT A.MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

LANCE, Judge: The pro se appellant, Kenneth W. Dean, appeals a September 30, 2014,
Board of Veterans’ Appeals (Board) decision that determined that new and material evidence had
not been received to reopen his previously denied claim for entitlement to service connection for
post-traumatic stress disorder (PTSD). Record (R.) at 2-11. Single-judge disposition is appropriate.
See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has
jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the September 30, 2014, decision and remand the matter for further proceedings consistent with this decision.

I. FACTS
The appellant served in the U.S. Marine Corps from September 1974 to September 1978.
R. at 415. His July 1978 separation examination notes a normal psychiatric evaluation. R. at 409.
At a VA primary care appointment in October 2004, the appellant screened positive for
PTSD, R. at 611-14, and he filed a claim for entitlement to service connection for PTSD the next month, R. at 705. He stated that his PTSD “stem[med] from the sudden deaths of several of [his] friends while in the service, including . . . [one] on the [U.S.S.] Midway, and another . . . in Japan.”
Id. In a February 2005 rating decision, the Winston-Salem, North Carolina, VA regional office (RO)
denied the appellant’s claim. R. at 590-92. Specifically, it determined that, because the appellant
had not “furnish[ed] a two month specific date range when the stressful event[s] occurred,” his
stressors could not be verified. R. at 592. The appellant did not appeal that decision.
In November 2009, the appellant submitted a request to reopen his claim. R. at 585. In a
December 2009 statement, the appellant described three “traumatic non-combat events,” including
an assertion that, while serving with Attack Squadron 115 on the U.S.S. Midway, he “witnessed [his]
friend’s airplane roll off the aircraft carrier” resulting in his drowning. R. at 525. In support of this
stressor, the appellant submitted an excerpt from a July 2004 Board decision in another veteran’s
case. R. at 526. That veteran had also reported seeing an aircraft “roll off the deck into the water,
killing the sailor ‘riding the brakes’ in the cockpit,” and that “his stressors could be verified by the
deck logs from the [Midway].” R. at 526.
In March 2010, VA sent a letter to the appellant asking him to “provide the exact date of the
incident . . . [or] indicate the location and approximate time (a 2-month specific date range) of the
stressful event(s) in question.” R. at 523 (bold emphasis removed). In April 2010, the appellant
responded that he had “no additional information to submit.” R. at 522. In July 2010, VA issued
a formal finding that it lacked sufficient information to submit a request “to the U.S. Army and Joint
Service Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of
Marine Corps or National Archives and Records Administration (NARA) records.” R. at 512. The
RO issued a decision in July 2010, denying the appellant’s request to reopen his PTSD claim, finding
that he had not submitted new and material evidence. R. at 498-500. The appellant filed a Notice
of Disagreement in August 2010, R. at 495, and he perfected his appeal in May 2011, R. at 473.
On September 30, 2014, following additional development, the Board issued the decision
now on appeal. R. at 2-11. It determined that the appellant had not submitted new and material
evidence, in part because the “lay evidence describing the [appellant]’s . . three traumatic noncombat
events likewise do not indicate any information sufficient to corroborate the in-service
occurrence of such stressful events.” R. at 9. Accordingly, the Board denied the appellant’s request
to reopen. Id.

II. ANALYSIS
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Liberally construing the appellant’s informal brief, he argues that the Board failed to provide an adequate statement of reasons or bases when it determined that VA had satisfied its duty to assist.
Appellant’s Informal (Inf.) Brief (Br.) at 1-3; see De Perez v. Derwinski, 2 Vet.App. 85, 86 (1993)
(the Court liberally interprets informal briefs submitted by pro se appellants). Specifically, he argues that the Board failed to discuss whether the duty assignments listed in his service records
were sufficient to identify the time and place of his claimed in-service stressors. Appellant’s Inf. Br.
at 1-3. The Secretary disputes the appellant’s arguments and asks the Court to affirm the Board’s
decision. Secretary’s Br. at 1-11. The Court agrees that the Board provided an inadequate statement of reasons or bases. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995).
In the decision on appeal, the Board found that the appellant had not sufficiently identified
the time and place his stressors had occurred for VA to request verification from the U.S. Marine
Corps, the NARA, or the JSRRC. R. at 5-6. The Board acknowledged the appellant’s December
2009 statement describing his stressors and its attachment stating that the stressors could be verified by the deck logs from the U.S.S. Midway. R. at 5. The Board also noted that the appellant stated in an April 2010 letter that he had no further information to provide in response to VA’s request for the approximate date and locations of the stressor events and that he failed to respond to an August
2012 request for information from the Appeals Management Center. R. at 5-6.
The Board did not, however, discuss evidence in the record detailing the dates and locations
of the appellant’s service or whether that evidence could provide a sufficiently narrow time window to submit a request to the JSRRC or NARA. See R. at 381 (noting that, between August 1976 and January 1977, the appellant was transferred to San Francisco “FOR OPCON WITH USS MIDWAY”); see also Gagne v. McDonald, __ Vet.App. __, __, No. 14-0334, 2015 WL 6114516, at *7 (Oct. 19, 2015) (holding that “the duty to assist required VA to submit multiple 60-day record searches” to JSRRC and that “the 13-month period in [that] case” was not “unreasonably long”).
Absent such discussion or analysis, the Court cannot understand the precise basis for the Board’s determination that VA satisfied its duty to assist, and the Court’s review is frustrated. See 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527.
The Court will, therefore, vacate the Board’s decision and remand the matter for further
proceedings. On remand, the Board must provide an adequate statement of reasons or bases, and it must address whether the evidence discussed above provides sufficient information to request
3
additional records. The appellant is free to submit additional evidence and argument 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
(requiring the Secretary to provide for “expeditious treatment” of claims remanded by the Board or
the Court).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a review of the record,
the Board’s September 30, 2014, decision is VACATED and the matter is REMANDED to the
Board for further proceedings consistent with this decision.
DATED: November 9, 2015
Copies to:
Kenneth W. Dean
VA General Counsel (027)
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