Citation Nr: 21074557 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 14-04 899 DATE: December 15, 2021 REMANDED Entitlement to service connection for any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), mood disorder and schizoaffective disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1971 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veterans Law Judge in October 2015. The Board remanded this matter for additional development in April 2016, October 2018, and March 2021. The Veteran reports three separate stressors that he asserts are the proximate cause of his current psychiatric disorders. First, the Veteran asserts that while in boot camp, his drill instructor struck him in the head, causing an injury and resulting in discipline to the drill instructor. See April 2013 VA Form 21-4138. The Veteran also asserts that he served at Nam Phang (commonly known as the "Rose Garden") in Thailand temporarily, for approximately 9 days, sometime between July 1973 and July 1974. He reports that while there, he experienced the other two stressful events: 1) he was subjected to shelling and in fear for his life, and 2) that a fellow servicemember, identified as Lance Corporal Cheers by the Veteran, died from a drug overdose. See March 2013 VA Form 21-4138; April 2013 VA Form 21-0781. In this regard, the Board, in its October 2018 remand, ordered that development be completed to determine whether the Veteran was temporarily in Thailand for any period of time between July 1973 and July 1974 and to complete any additional development regarding the death of Lance Corporal Cheers in Thailand. In August 2019, the National Archives responded, reporting that a review of records from the Supply Company, Supply Battalion, 3rd Force Service Regiment for the period between June to August 1973, including muster rolls, did not reveal any temporary assignments for the Veteran. Additionally, the National Archives supplied command chronologies from the same time period. Despite subsequent correspondence between the AOJ and the National Archives, the March 2021 remand concluded that the AOJ had only completed development for the period of June to August 1973 and directed the AOJ to complete all necessary development to determine whether the Veteran was temporarily in Nam Phang, Thailand (Rose Garden) at any time between September 1973 and July 1974. The AOJ sent several letters (March, April, May 2021) to the National Archives requesting information "related to a personal assault," and inquiring as to the Veteran's asserted presence in Thailand from "July 1973 Sept. 1973." The Board notes that the Veteran had not asserted that he had been assaulted in Thailand. Moreover the dates in the AOJ requests to the National Archives do not correspond to the dates of concern in the March 2021 remand. The National Archives responded in August 2021, providing a command chronology for the Supply Battalion, 3rd Force Service Regiment from July 1973 - December 1973 and not surfacing any temporary assignments for the Veteran. The AOJ sought no additional information from the National Archives and continued denial of his claim. See September 2021 Supplemental Statement of the Case. For these reasons, remand is required to ensure substantial compliance with the Board's March 2021 remand directives, namely for the period between January 1974 and July 1974. Stegall v. West, Vet. App. 268 (1998). Regarding the Veteran's reported personal assault in bootcamp, the Board also finds the AOJ's development inadequate. See April 2013 VA Form 21-4138, April 2019 VA Form 21-0781a, November 2019 Veteran lay statement. The Veteran specifically reported that between August 1971 and November 1971 in bootcamp, he was sent to a retraining or "extra-motivation" session during which time a drill instructor struck him in the head, causing injury to the Veteran and resulting in formal punishment for the drill instructor, identified as Staff Sergeant "Morse" or "Morris." Id. The AOJ, in October 2019, requested verification from the United States Marine Corps Archives regarding the asserted personal assault. In the same month, the USMC archivist responded and directed the AOJ to submit requests to the National Archives and to the Navy JAG. No further inquiry was made by the AOJ to either entity. Instead, the AOJ mailed the Veteran a letter informing him that the details of his asserted stressor were insufficiently specific. See October 2019 JSRRC Letter. The Veteran promptly responded with additional detail regarding the incident. See November 2019 Veteran Lay Statement. The Board previously found that the AOJ had not fulfilled its duty to assist the Veteran in developing the alleged personal assault claim. However, the March 2021 Remand directives did not include specific direction to the AOJ regarding the personal assault. Rather, the AOJ sent letters to the Marine Corps Historical Center (MCHC) on March 9, April 8, May 10, and July 27, 2021. At least one letter was returned to the VA undelivered, and none were answered. Moreover, the letters inquired as to the whether the Veteran had been present in Thailand for 9 days between July 1973 and July 1974 and did not seek information regarding the alleged assault in Marine Corps Boot Camp. The Board finds it inadvertently omitted the instruction to the AOJ to inquire regarding the asserted personal assault in the March 2021 remand, and this error should be corrected on remand. Regarding the MCHC's lack of response to the more recent 2021 inquiries, the Board observes that 38 C.F.R § 3.159(e) requires affirmative notification to the Veteran if the VA concludes, after continued efforts to obtain Federal records, that it is reasonably certain that they do not exist or further efforts to obtain them would be futile. The notice must contain certain information, including an explanation of the efforts VA made to obtain the records. The file contains no such notification, and the Board finds that the AOJ has not fulfilled its duty to assist the Veteran in developing the evidence regarding a personal assault claims and an additional remand is necessary in this regard. See Stegall, supra. Finally, regarding the September 2021 VA examiner's opinion, the Board notes the examiner did not consider several items the March 2021 remand had directed for consideration, namely, the: 1) February 2018 statement from Dr. P.J.D. that schizoaffective disorder symptoms "either started in the military or were more likely than not exacerbated by stressors in the military;" 2) the Veteran's report of auditory hallucinations, beginning during active duty, made to a vocational counselor in October 2011; and 3) February 2018 statement from L.S., MSW, LCSW that the Veteran's military experience "interrupts his daily functioning." Although the examiner purports to have searched for this information, his inability to locate and consider this information renders the opinion of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on incomplete or inaccurate factual premises are not probative.) Accordingly, another addendum opinion is required on remand. The matters are REMANDED for the following action: 1. Compete all necessary development to determine whether the Veteran was temporarily in Nam Phang, Thailand (Rose Garden) at any time between January 1974 and July 1974. Please note that the requirement of a 60-day window for research purposes is in violation of the duty to assist. See Gagne v. McDonald, 27 Vet. App. 397 (2015) (VA's duty to assist is not bound by the JSRRC's 60-day limitation for stressor verification requests). If necessary, make multiple requests for smaller time periods. 2. If and only if temporary duty in Thailand is confirmed, attempt to verify whether the death of Lance Corporal Cheers occurred at the Rose Garden in Thailand while the Veteran was there. 3. Using the Veteran's November 2019 Lay Statement (labeled VCAA/DTA letter), complete all necessary development to determine whether the Veteran was assaulted / hit in the head by his drill instructor [Sergeant Morse/Morris] in basic training between August 1971 and November 1971, resulting in formal punishment for the drill instructor. 4. Only after completing items 1 through 3, request an addendum opinion from an examiner other than the September 2021 examiner. No additional examination of the Veteran is necessary unless the examiner determines otherwise. The entire claims file, including a copy of this remand, should be made available to and reviewed by the examiner. Following a review of the claims file, the examiner is asked to address the following: (a) Please identify all acquired psychiatric disorders diagnosed on examinations and in treatment records since March 2013 (during the pendency of this appeal), to include schizoaffective disorder and mood disorder (see March 2014 VA treatment records). (b) Please state whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder, to include schizoaffective disorder and mood disorder, had its onset in or is otherwise related to service, to include any verified stressor therein. (c) Please state, to the best of your ability, whether it is at least as likely as not (50 percent or greater probability) that the prodromal period for schizoaffective disorder had its onset during the Veteran's period of active service. (d) Please state whether it is at least as likely as not (50 percent or greater probability) that schizoaffective disorder manifested within one year of separation from service, or by August 1976. Please do not rely solely on the absence of documentation in the service treatment records. In answering these questions, please address the following: 1. Please comment, to the best of your ability, whether the Veteran's longstanding substance and alcohol abuse was related to any acquired psychiatric disorder, including whether such abuse was an attempt to self-medicate. 2. Please discuss the February 2018 statement from Dr. P.J.D. that schizoaffective disorder symptoms "either started in the military or were more likely than not exacerbated by stressors in the military," as well as the February 2018 statement from L.S., MSW, LCSW that the Veteran's "military experience interrupts his daily functioning." 3. Please address the Veteran's assertion that the episodes of violence and unauthorized absence documented in service personnel records represent "markers" for the purposes of the onset of a psychiatric disorder; 4. Please discuss the Veteran's report of auditory hallucinations beginning during active duty made to a vocational rehabilitation counselor in October 2011, well before he ever filed for compensation. 5. Please consider the Veteran's statements that his psychiatric symptoms began during active duty and continued to the present day. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner is unable to opine without resorting to speculation, he or she should provide a thorough rationale as to why that conclusion was ultimately reached. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Saumur, 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.