Citation Nr: 24018174 Decision Date: 04/29/24 Archive Date: 04/29/24 DOCKET NO. 17-39 571 DATE: April 29, 2024 REMAND Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 1972 to August 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. In an April 2022 Board decision, the Veteran was denied entitlement to service connection for PTSD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Counsel for the Veteran and the Secretary of VA (the parties) filed a Joint Motion for Partial Remand (JMPR). The parties agreed that the Board's April 2022 denial of the above claim should be vacated and remanded because the Board erred when it did not address potentially relevant evidence. Specifically, the JMPR noted that the Board did not discuss the Veteran's in-service stressors, which were that the Veteran contends that he was subjected to racial epithets to the extent that he did not want to go below deck on the ship, and that he was held down to have his face shaved. See March 2023 Board of Veterans Appeals Remand. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. The Board regrets the delay associated with this remand, particularly as this matter is the subject of a prior remand. However, remand is warranted for compliance with the previous Board remand in March 2023, where verification of the Veteran's stressor was not accomplished during the relevant period as clarified by the Veteran in his notice of disagreement (NOD). See Stegall v. Brown, 11 Vet. App. 268, 271 (1998). Specifically, in February 2015 and March 2015, VA contacted the Veteran regarding his in-service stressor. See February 2015 Correspondence; March 2015 Correspondence. In April 2015, the Veteran called to verify the information regarding the date of his in-service stressor. See April 2015 Form VA 21-0820 Report of General Information. In June 2015, the Veteran stated that the dates researched by the Joint Service Record and Research Center (JSRRC) were incorrect, and that the correct dates are from May 23, 1973 through August 4, 1973. See June 2015 Notice of Disagreement (NOD). In September 2023, a Records Research Response was accomplished, but it appears to be completed only for the period from October 1972 to January 1973. See September 2023 Records Research Center Response. Unfortunately, the period researched is not the entire period, where the Veteran in his NOD contends the stressor occurred from May 1973 to August 1973. Given such, remand is required to verify his stressors during the appropriate period. In Gagne v. McDonald, the Court found that VA was not precluded from seeking corroboration of a veteran's claimed stressor merely because he could not narrow the potential date for the stressor beyond a 13-month period. 27 Vet. App. 397, 403-04 (2015). Instead, the Court held that if the veteran could not narrow the time frame of his reported stressor to a 60 day period, then the duty to assist required VA to submit multiple record search requests, each for a different 60-day range, to cover the veteran's relevant service period. Id. Under 38 U.S.C. § 5103A(c)(2) and implementing regulation 38 C.F.R. § 3.159(c)(2) (2023), VA may end its efforts to obtain a federal record as futile "only when it becomes clear the record does not exist or is not in the possession of the custodian." Id. at 403. Of note, VA mailed the Veteran correspondence in November 2023, requesting additional evidence. Specifically, VA requested the full name of the Chief Bosun Mate/Chief Petty Officer Boatswain Mate, while serving with the USS Kawishiwi (AO-146) between October 1, 1972, and January 1, 1973. See November 2023 Subsequent Development Letter. However, in his hearing testimony, the Veteran testified that he did not recall the chief's name as it had been almost fifty years ago. See August 2021 Hearing Transcript at 17. Given such, if no other additional information is warranted from the Veteran, a search should still be conducted during the relevant period. The matters are REMANDED for the following action: 1. Make appropriate requests to the Compensation Service and any other appropriate source (since the JSRRC no longer exists) for verification of the Veteran's stressors as to experiencing racial epithets, as well as being injured below deck during the period of January 1973 to August 1973. This includes, if necessary, submitting multiple requests using different 60-day requests intervals to cover the entire relevant service period. See Gagne v. McDonald, 27 Vet. App. 397 (2015) (holding that VA had failed in fulfilling its duty to assist in not submitting multiple requests to the JSRRC). (a.) The research should be done for the period from January 1973 to August 1973, in 60-day intervals. (b.) The Veteran's stressors include: 1. During basic training the Veteran stated that he was held done and his face was forcibly shaven, 2. While serving on board the USS Kawishiwi, he was nearly washed overboard when he was thrown across the ship by an errant wave. After the incident, the Veteran contends that he refused to go back to the same duty, because he was afraid, 3. While serving on board the USS Kawishiwi, the Veteran contends that after he refused to go back down to the ship deck, his Chief Bosun Mate called him a racial epithet and also told the Veteran to get his "MF" down there. Because a witness was present, the Veteran contends that his Chief Bosun Mate lost rank due to this incident. The Veteran contends that his Chief Bosun Mate sent him to the Captain and he was fined and put on 30 days restriction (c.) All requests and responses received should be associated with the claims file and a summary of the findings in this regard should be provided in a memorandum associated with the file. If such verification is not possible, it should be so certified for the record (along with a description of the extent of the verification conducted). d) If more details are required to conduct such search (including the name of the Veteran's Chief Bosun Mate), the Veteran should be asked to provide the necessary information. THE RESULTS OF SUCH REQUEST, WHETHER SUCCESSFUL OR UNSUCCESSFUL, SHOULD BE DOCUMENTED IN THE CLAIMS FILE, AND THE VETERAN INFORMED OF ANY NEGATIVE RESULTS. 2. After the above development, IF, and ONLY IF, THE VETERAN'S IN-SERVICE STRESSOR IS VERIFIED, schedule the Veteran for a VA examination to determine the nature and etiology of his PTSD. Any and all tests and evaluations deemed necessary by the examiner should be performed. The AOJ must provide the examiner with a summary of any verified in-service stressor(s), and the examiner must be instructed that only the verified in-service stressor(s) may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should be asked to address the following: a) whether it is at least as likely as not (i.e. likelihood is at least approximately balanced or nearly equal, if not higher) that the PTSD is etiologically related to a verified in-service stressor. b) A rationale must be provided for the opinion proffered. Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301(2008). 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. (Continued on the next page) (a.) IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Abua-Barnes, 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.