Citation Nr: 21074522 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-34 052 DATE: December 15, 2021 REMANDED Entitlement to service connection for ischemic heart disease, status post coronary artery bypass graft is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1967 to April 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in January 2020 and were remanded for additional development. The case is once again before the Board. Appellants are entitled to initial review by the Agency of Original Jurisdiction (AOJ) of evidence added to the file by VA, and waiver of such review may not be presumed. See 38 C.F.R. § 20.1305. Additional evidence has been added to the file by VA since the September 2020 Supplemental Statement of the Case (SSOC) related to the claim. Notably, ship logbooks, an herbicide agent exposure determination, and VA treatment records related to treatment for the Veteran's heart condition and PTSD. The Veteran has not submitted a waiver of initial consideration of the new evidence by the AOJ. An attempt to obtain a waiver was sent to the Veteran in October 2021, but the applicable time period has lapsed without a response. Therefore, the AOJ must be given an opportunity to consider this evidence and properly adjudicate the claims. Additionally, the Board finds additional development is warranted to attempt to verify the Veteran's reported stressor. In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There are particular requirements for establishing service connection for PTSD that are separate from those for establishing service connection generally. See 38 C.F.R. § 3.304(f). Service connection for PTSD requires the following: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. Id. In June 2020, a VA examiner found the Veteran's PTSD was at least as likely as not related to his service based on his reported stressor. However, the Veteran's stressor has not been verified. In March 2018 and February 2020, the RO sent letters to the Veteran requesting additional stressor information and provided him with a VA Form 21-0781. The letter specifically requested the location where the incident took place, and the approximate date (within two months) of the incident. The Veteran did not return the form or otherwise provide the additional information necessary. In March 2020, the RO made a formal finding on a lack of information required to verify the stressor in connection with the PTSD claim. While the Veteran did not respond to the RO's requests, the Board finds that the location of the incident and an approximate date is already part of the record. At his June 2020 VA examination the Veteran stated he was involved in recovery efforts following a ship accident in the Philippines. The record contains the Veteran's ship logs which show when the Veteran was in the Philippines. The Veteran has stated that he recovered bodies from the USS Frank Evans after its collision with the HMAS Melbourne. He also reported that he participated in diving operations for a sunken aircraft outside of Subic Bay. The duty to assist includes making as many requests for records as are necessary and ends only when such a search would become futile. In Gagne v. McDonald, 27 Vet. App. 397 (2015), the United States Court of Appeals for Veterans Claims (Court) held that VA's duty to assist is not bound by the Joint Services Records Research Center's (JSRRC) 60-day limitation to obtain records. The Court found that VA was obligated under its duty to assist to submit multiple 60-day requests to the JSRRC for records of an event. Id. at 404. The Court determined that the fact that multiple record searches would burden JSRRC employees does not mean that those efforts would be futile. The Board is aware of the regulatory amendment removing the reference to the JSRRC in 38 C.F.R. § 3.156(c)(2). The Federal Register explained that the JSRRC no longer exists, but that the military records themselves previously researched by the JSRRC remain available for research by VA as an official source of records. The Office of Administrative Review (OAR) has advised that the Veterans Benefits Administration (VBA) which the RO falls under, should use their internal process to research records. Accordingly, the matter is remanded for additional development. The matters are REMANDED for the following action: 1. Make appropriate requests to the Compensation Service or any other appropriate agency (since the JSRRC no longer exists) for research of documentation related to the Veteran's alleged PTSD stressor. If multiple requests are required to cover the Veteran's entire period of service while serving in the Philippines, they must be conducted. All the information obtained should be incorporated in the claims folder. The RO may discontinue the search if it becomes "futile," which is defined as "where it is apparent that the sought-after records are either not in existence or not in the possession of the record's custodian." If the search is so discontinued, the reasons for being discontinued must be noted in the record. All actions to verify the alleged stressor should be fully documented in the claims file. 2. The Veteran's claims should be readjudicated based on the entirety of the evidence. If the benefits sought on appeal are not granted, the Veteran should be provided a SSOC and afforded the requisite opportunity to respond before the case is remanded to the Board. For the issues on appeal, the SSOC should consider any new evidence received since the last SSOC. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, 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.