Citation Nr: 22014657 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-22 598A DATE: March 14, 2022 REMANDED Entitlement to service connection for psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1971 to June 1974. A January 2020 Board decision denied the Veteran's above claim. In September 2021, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a memorandum decision, the Court vacated and remanded the January 2020 Board decision as to the above issue. The Court found that the Board did not provide adequate Reasons and Bases. Specifically, the Board did not satisfy the duty to assist. First, the Court found that records from all dates the Veteran reported his stressor possibly occurred were not requested. Second, VA treatment records from all dates of reported treatment were not obtained. Lastly, the Court found that the Board must determine whether obtaining another veteran's service records under VA General Counsel Precedent Opinion 5-2014 is warranted. (CONTINUED ON NEXT PAGE) Entitlement to Service Connection: Psychiatric Disorder The Veteran contends that his psychiatric disorder, to include PTSD and depressive disorder, is related to his active-duty service. The Board must first address whether obtaining another veteran's service records is warranted. The Veteran contends that his psychiatric disorder is related to an in-service car accident where he was the driver which resulted in the deaths of two other servicemen. The Veteran has contended that if evidence of this accident is not within his records, the records of the deceased servicemen, Sergeant (SGT) Brown and Sergeant Mitchell, as well as the witnesses to the accident, Specialist McCoy, Specialist Day, and Specialist O. Mitchell, should be obtained to verify the accident and the subsequent deaths under VA General Counsel Precedent Opinion 5-2014 (GC Opinion 5-2014). GC Opinion 5-2014 determined that VA's duty to assist included reasonable efforts to obtain related records belonging to service members other than the claimant in some cases. The opinion held that VA is generally obligated to obtain those records when "(a) those records were adequately identified, would be relevant to the Veteran's claim, and would aid in substantiating the claim; and (b) VA would be authorized to disclose the relevant portions of such records to the Veteran under the Privacy Act and 38 U.S.C. §§ 5701 and 7332." See GC Opinion 5-2014 (Revised Jan. 5, 2017). The Board notes that disclosure of VA's own records is limited by the Privacy Act, 5 U.S.C. § 552a, and 38 U.S.C. § 5107. Under 5 U.S.C. § 552 (b)(7), an agency may disclose a record "to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties." This provision allows that a VA adjudicator deciding veteran A's claim potentially may consider records in veteran B's claims file without violating the Privacy Act. However, this provision does not itself authorize further disclosure of such records to veteran A. Id. at n.2. As privacy rights do not survive death, the Privacy Act does not apply if the third party is deceased. Id. (citing Crumpton v. United States, 843 F. Supp. 751, 756 (D.D.C. 1994); VAOPGCADV 53-90). For records in VA's possession, under section 5701A, other than names and addresses and information protected by section 7332, they may be disclosed if VA finds that such disclosure would serve a "useful purpose." Id. It is noted that it may be necessary to redact the records to remove identifying information that is not relevant to the claim or is otherwise within the scope of the relevant authorization. Id. Here, the deceased servicemen's records would be relevant to verifying the Veteran's stressor, as the Veteran reported driving the vehicle in the accident that caused the deaths of both servicemen. The Veteran has also provided the last names, rank, and unit the servicemen were in. Therefore, the Veteran has adequately identified the records needed. However, as the other named witnesses are not known to be deceased, requesting their records could possibly be a privacy violation, especially as they were not at fault or caused the said accident. Therefore, the Board finds that if the Veteran wants to retrieve such records from Specialist McCoy, Specialist O. Mitchell, and Specialist Day, he should obtain release records from these veterans. The Board also notes that if obtaining a release from the veterans is not possible, the Veteran could also request "Buddy Statements" that they may submit on his behalf detailing the accident they witnessed. The Board recognizes that the Regional Office (RO) did request records showing motor vehicle accidents and/or casualties that involved the Veteran and the named deceased servicemen, from September 1973 to December 1973 for the 2nd battalion 28th field artillery. However, the Veteran reported the accident may have occurred in early 1973 (i.e., February 1973). Thus, the RO should make additional attempts to verify the deceased and/or request any relevant records related to the servicemen, SGT Brown and SGT Mitchell. Moreover, the Board finds that the RO did not request all VA treatment records reported by the Veteran. The Veteran reported receiving treatment for his condition as early as 1980 from VA Medical Center (VAMC) in Houston, in 1985 from VAMC in Alexandria, and in 1993 from the VAMC in North Little Rock. However, the earliest treatment records of record are from 2001. Thus, the RO must request VA treatment records from all VAMCs reported by the Veteran. The Board reminds the Veteran that the duty to assist is not a one-way street, and thus, he must report all potentially relevant records, provide appropriate release forms, and request buddy statements from fellow servicemen as needed. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In light of the foregoing, a remand is required in order to complete the above actions. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's electronic claims file any outstanding VA treatment records and private medical records relevant to the Veteran's claims. Obtain signed release forms from the Veteran as needed. Specifically, request all VA treatment records from VAMC Houston, VAMC Alexandria, and VAMC North Little Rock, dating back to the 1980. 2. Make all attempts to verify the Veteran's stressors. The RO should request motor vehicle accidents and casualties from the 2nd battalion 28th field artillery involving the named deceased servicemen, SGT Brown and SGT Mitchell, from 1972 to 1974. As appropriate, follow the guidance and precedent as noted in GC opinion 5-2014 to request relevant evidence that may be used to corroborate the Veteran's claimed stressor. All attempts to obtain relevant evidence should be documented within the file. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron 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.