Citation Nr: 21004923 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 12-12 798 DATE: January 28, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, and major depressive disorder (MDD) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1974 to July 1974 and from January 1976 to October 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision. In a July 2018 decision, the Board denied the Veteran’s claim for service connection. The Veteran appealed the Board’s decision and in a June 2019 Order, the United States Court of Appeals for Veterans Claims (Court) endorsed a June 2019 joint motion for remand (JMR), vacated the Board’s decision to the extent it denied the claim for service connection, and remanded the case for further action consistent with the terms of the JMR. The Veteran’s claim for service connection was remanded by the Board in October 2020 pursuant to the terms of the JMR. Although the Board regrets further delay, the Veteran’s claim for service connection, must be remanded for further development in accordance with the terms of the JMR and to pursue additional development to ensure that there is a complete record upon which to decide the his claim, so that he is afforded every possible consideration. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, and MDD is remanded. The October 2020 Board remand directed the Agency of Original Jurisdiction (AOJ) to provide the Veteran proper notice of in-service personal assault as required by 38 C.F.R. § 3.304(f)(5). The Board further instructed the AOJ to attempt to obtain records to corroborate the Veteran’s reported in-service personal assault or notify him it could not undertake such efforts as required by VA General Counsel Precedent Opinion 05-14. The Board finds that there has not been substantial compliance concerning these remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Thus, an additional remand is necessary. In particular, an October 2020 letter advised the Veteran that evidence from sources other than his service records should be provided to help substantiate his reported in-service stressor. However, the letter does not inform the Veteran that evidence from sources other than his service records or evidence of behavior changes may constitute credible supporting evidence of the stressor. 38 C.F.R. § 3.304(f)(5). Therefore, on remand, the Veteran must be informed as such. The Veteran’s claims folder contains evidence of the last name of the sergeant that assaulted and harassed him and the full name of the senior master sergeant to whom he reported the assault and harassment. See April 2011 Written Statement; see also May 2020 VA Form 27-0820, Report of General Information. It is possible that the identified servicemembers’ personnel files would contain records that may aid in substantiating the Veteran’s reported in-service personal assault. In accordance with General Counsel Precedent Opinion (VAOPGCPREC) 05-2014 (August 12, 2014), when a claimant adequately identifies relevant records of fellow servicemembers that may aid in corroborating a claimed event, the duty to assist requires VA to attempt to obtain such records, or at a minimum, to notify the claimant why it will not undertake such efforts. Molitor v. Shulkin, 28 Vet. App. 397 (2017). The Veteran’s claims folder does not indicate that efforts were made. Thus, a remand is necessary to attempt to obtain the identified servicemembers’ personnel records in accordance with VAOPGCPREC 5-2014 and Molitor. The matter is REMANDED for the following action: 1. Send the Veteran a letter providing the required notice set forth in 38 C.F.R. § 3.304(f)(5) regarding the types of evidence that can be submitted for PTSD claims based on in-service personal assault. The Veteran must be advised that evidence from sources other than his service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and he must be allowed the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 2. Undertake all reasonable efforts, pursuant to VAOPGCPREC 5-2014, to attempt to corroborate the Veteran’s reported in-service personal assault, including obtaining records from fellow servicemembers Sergeant Salazar and Senior Master Sergeant Geer. The Veteran provided details of the claimed in-service personal assault in an April 2011 written statement, May 2012 written statement, February 2013 written statement, November 2013 VA Initial Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire, June 2015 VA Initial Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire, and May 2020 Report of General Information. If VA fails to obtain any of the information requested or determines it will not undertake such efforts, it should, in accordance with Molitor, 28 Vet. App. 397, notify the Veteran. 3. Obtain the Veteran’s VA treatment records for the period from December 2020 to the present. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.