Single Judge Application, VA Obligation Search for Pertinent Records, Mayhue v. Shinseki, 24 Vet.App. 273, 280 (2011)

Excerpt from decision below: "Recently, the Court concluded that the Board erred when it failed to assign an earlier effective date based upon the receipt of newly discovered service department records pursuant to 38 C.F.R. § 3.156(c) (2002) and (2010), where the record demonstrated that, not with standing the veteran's failure to fully cooperate with VA's requests for information to verify other claimed stressors, the information necessary for the Center for Research of Unit Records to verify his stressor that resulted in the award of benefits for PTSD had always been a part of the claims file. See Mayhue v. Shinseki, 24 Vet.App. 273, 280 (2011). The Court stated that it was "VA's administrative error in failing to verify [the appellant's] stressor with the information that it had at the time of his initial claim, not [the appellant's] subsequent failure to provide additional information sufficient to verify other claimed stressors, that prevented VA from verifying his stressor until March 2005." Id. Although Mayhue is not directly on point, the Court's reasoning is instructive and supports the appellant's contention that, in this case, VA's duty to assist may have included conducting a search for the pertinent unit histories and morning reports from the Center for Research of Unit Records where the record contains specific information denoting the appellant's unit assignments, military occupation, and dates of deployment to Vietnam. See R. at 315-16, 425, 480, 487, 526. The Board, however, did not discuss whether VA was obligated to conduct a search for unit histories or morning reports to confirm whether the appellant engaged in combat during his service in Vietnam. Instead, the Board summarily stated that it was "unaware of any outstanding pertinent evidence." R. at 5. In this case, the Court concludes that it is unclear whether the appellant's inaction deprived VA of the information needed to request records that may corroborate his assertion that he engaged in combat. See Mayhue, 24 Vet.App. at 280 (noting VA's determination that the veteran was subject to enemy attack because the Center for Research of Unit Records verified that 8 the base camp to which the veteran was assigned was subjected to enemy attacks)." ====================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-4670 PAUL T. VENTURA, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN, Judge: The appellant, Paul T. Ventura, appeals through counsel a November 5, 2009, BoardofVeterans'Appeals(Board)decisionthatfoundnewandmaterial evidencehad been received to reopen a claim for entitlement to service connection for post- traumatic stress disorder (PTSD), but denied the claim on the merits. Record of Proceedings (R.) at 3-9. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this decision. I. BACKGROUND The appellant served on active duty in the U.S. Marine Corps from January 27, 1969, to February 5, 1971, including service in Vietnam. R. at 526. His DD Form 214 reflects that his military occupational specialty was rifleman and that he received the National Defense Service Medal, the Vietnam Service Medal with one star, and the Vietnam Cross of Gallantry. Id. His service personnel records include a form that contains a heading, "COMBAT HISTORY - EXPEDITIONS," which notes that the appellant's service in Vietnam included participation in counterinsurgency actions against the Viet Cong from August 20, 1969, to November 30, 1969, and Operation Idaho Canyon in Quang Tri province from August 20, 1969, to September 10, 1969. R. at 480. During this time, he was assigned to Company A, 1st Battalion, 4th Marine Regiment, 3rd Marine Division. R. at 425. His personnel records also indicate that in September 1969, he was aboard the U.S.S. Repose for treatment of a "fever of unk[nown] origin." R. at 487. In May 1998, the appellant filed a claim for entitlement to service connection for PTSD, which was denied by a VA regional office (RO) in March 1999. R. at 304-09, 335-38. Years later, in February2005, the appellant was diagnosed with PTSD and reported that he experienced "hostile fire in a combat zone" and that he was sexually assaulted when he was aboard the U.S.S. Repose for treatment for malaria, hepatitis, and anemia. R. at 255, 257, 270. The following month, a VA psychiatrist, Dr. Leonard Kram, also diagnosed PTSD with depression. R. at 249. Dr. Kram's report indicates that the appellant reported combat service in Vietnam, schrapnel wounds to his lower extremities, and that he was treated aboard a medical ship after contracting malaria and hepatitis. R. at 248. Dr. Kram recorded the appellant's report that he was sodomized by another soldier while aboard the ship, but that he never reported the incident. Id. Dr. Kram also noted the appellant's history of recurrent nightmares, difficulty sleeping and maintaining employment, drug abuse, and that he had been homeless and unemployed for the preceding two years. R. at 248-49. Dr. Kram opined that "[i]t is likely that his PTSD, depression[,] and poly substance abuse is a direct result of his experience in combat in Vietnam as well as his sexual assault while receiving treatment for his in[j]uries and infectious disease while on active duty." R. at 249. In March 2005, the appellant submitted a statement indicating that he had been diagnosed with PTSD related to a sexual assault while on active duty, that he was being treated at a VA medical center for this condition, and requested that VA consider entitlement to service connection. R. at 298. Later that month, the appellant submitted a statement in support of claim in which he described the difficulties he experienced upon returning from service, including difficulty holding a job and problems with drug and alcohol, which he attributed to both the in-service sexual assault and being separated from his squad and coming into contact with the enemy while on a night fire mission. R. at 215-16. 2 The appellant submitted a handwritten statement in April 2005, in which he provided additional details regarding his combat service in Vietnam and being sexually assaulted. R. at 219- 22. With regard to his combat experience, the appellant wrote: While I was in Viet-Nam; from Da-Nang Air Force Base[,] I was sent to Quan- Tri Province then my Co. Platoon was sent to Dong-Ha Mountain where we did search [and] destroy missions or patrols. Came in contact with enemy [North Vietnamese Army] regulars in a night time s[kir]mish (firefight)[.] After that I was a nervous wreck[.] It was in the monsoon season one night on a patrol[,] I was separated from my squad[,] and to this day I still feel [the] nervousness I felt that night. I thought I was going to be killed or captured[.] I still have recurring nightmares of these events. R. at 220. On June 26, 2005, the RO issued a deferred rating decision, which noted that although the appellant's March 2005 correspondence described a sexual assault, later correspondence described combat situations. R. at 209. It was noted that clarification was necessaryto determine whether the appellant was seeking service connection for PTSD "due to sexual assault or combat exposure." Id. On August 1, 2005, the RO sent the appellant a letter informing him that it was working on his application for service connection for hepatitis C, anemia, and non- service-connected pension, and purported to inform him of the information and evidence needed to support those claims. R. at 189-97. The sole reference to his pending PTSD claim, contained on page three of the letter, requested that he clarify whether he was seeking service connection for PTSD due to sexual trauma or combat exposure. R. at 191. There is no indication in the record that the appellant responded to this request for clarification. InNovember2005,theRO notifiedtheappellant ofitsdecisionto denyentitlementto service connection for PTSD because there was no evidence presented to show that he engaged in combat with the enemy and there was no credible evidence to show that he was a victim of a sexual assault. R. at 162; see generally R. at 155-58, 160-69. With regard to the appellant's combat experience, the RO noted that [s]ervice records show that you served in Vietnam from August 19, 1969[,] to October 3, 1969[,] as a Rifleman with Company A, 1st Battalion, 4th Marine Regiment, 3rd Marine Division. For your short period of service in Vietnam, you were awarded the National Defense Service Medal, and the Vietnam Service Medal. You were also authorized to wear the Vietnamese Cross of Gallantry Medal that was awarded to your unit during the period of your assignment to that unit. In your 3 stressorstatements,youreportedthatduringyourtime in Vietnam yourcompanywas assignedto conduct"SearchandDestroy"missions and that yourunit camein contact with the North Vietnamese Army in a nighttime firefight, you also report being separated from your squad on a night patrol during the rainy season and of being sexually assaulted while aboard the hospital ship, the U.S.S. Repose. Sinceyourservicerecordsfailedto showanyawards,commendations,orcitations denoting your participation in combat or the occurrence of the sexual assault, it would have been necessary to seek out the confirmation of your reported stressors with the U.S. Armed Services Center For Research of Unit Records (USASCRUR) located in Springfield, Maryland. However, this action could not be undertaken based on your description of the events leading to your claimed [PTSD]. In order to request confirmation of reported in-service stressors, we must have specific details of the stressful event such as dates, places, unit of assignments at the time of the events, description of the events, medals, or citations received as a result of the events and if appropriate, names and other identifying information concerning any other individuals involved in the events. As a minimum, the report of stressors must indicate location and approximate time (a 2-month specific date range) of the stressful events in question, and the unit of assignment at the time the stressful event occurred. R. at 163. In November 2005, the appellant filed a Notice of Disagreement and submitted additional medical evidence from Dr. Selby, a clinical psychologist and sexual trauma counselor, who diagnosed him with PTSD based upon military sexual trauma. R. at 150-54. In February 2007, the RO issued a Statement of the Case (SOC), which continued to deny the claim because although the appellant's medical records showed a diagnosis of PTSD dueto sexual assault,therewasnoevidence of a verifiable in-service stressor. R. at 105; see R. at 91-106. The same SOC also denied the appellant's claim for entitlement to service connection for hepatitis C with anemia, which is not before the Court. Id. In May and July 2007, the appellant submitted a VA Form 9 indicating that he read the SOC and that he was appealing only the issue of "PTSD sexual assault." R. at 86-87; see also 84-85. In February 2009, the appellant submitted written statements from his brothers describing an incident that took place shortly after his return from Vietnam, during which the appellant stabbed one of his brothers who startled him from behind. R. at 48-55. 4 On November 5, 2009, the Board issued the decision here on appeal. R. at 3-9. The Board determined that new and material evidence had been received to reopen a claim of entitlement to service connection for PTSD, but denied the claim on the merits. Id. The Board concluded that "[t]he [v]eteran did not serve in combat and the record does not include credible evidence corroborating the occurrence of the [v]eteran's claimed in-service stressors including a personal assault." R. at 4. This appeal followed. The appellant argues that VA did not fulfill its duty to assist because, notwithstanding his statements that he engaged in combat with the enemy and the presence of a diagnosis of PTSD based, in part, on his reported combat experiences, VA failed to conduct a search for unit histories or morning reports, which could corroborate his assertion that he engaged in combat. Appellant's Brief (Br.) at 10-12. The appellant also argues that the Board failed to provide an adequate statement of reasons or bases for finding that he did not engage in combat and impermissiblyignored favorable evidence demonstrating that his PTSD diagnosis had been attributed to combat. Id. at 12-18. The Secretary disputes these contentions and argues for affirmance of the Board's decision. Secretary's Br. at 6-10. II. ANALYSIS To establish service connection for PTSD, a claimant must present (1) evidence of a current diagnosis of PTSD; (2) evidence of an in-service stressor, with credible supporting evidence that the claimed in-service stressor occurred; and (3) evidence of a causal nexus between the current symptomatology and the in-service stressor. 38 C.F.R. § 3.304(f) (2011); see Cohen v. Brown, 10 Vet.App. 128, 138 (1997). If the evidence establishes that the veteran engaged in combat with the enemy and his claimed stressor is related to that combat, the veteran's lay testimony alone generally is sufficient to establish the occurrence of the claimed in- service stressor. 38 U.S.C. § 1154(b); Sizemore v. Principi, 18 Vet.App. 264 (2004); 38 C.F.R. § 3. 304(f); see also Zarycki v. Brown, 6 Vet.App. 91, 98 (1993) (requiring that the Board "make specific findings of fact as to whether or not the veteran was engaged in combat with the enemy and, if so, whether the claimed stressor is related to such combat" and describing the different evidentiary standards applied to veterans who have been determined to have "engaged in combat with the enemy" and those who 5 have not). When a claim for PTSD is based on a noncombat stressor, "the noncombat veteran's testimony alone is insufficient proof of a stressor." Moreau v. Brown, 9 Vet.App. 389, 396 (1996). The Board's findings concerningcombat status and the sufficiencyofcorroborative evidence are findings of fact that the Court reviews under the "clearly erroneous" standard of review. Pentecost v. Principi, 16 Vet.App. 124, 126 (2002); Moreau, 9 Vet.App. at 395. A finding of fact is clearlyerroneous when the Court, after reviewing the entire evidence, " is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991). The Board is also required to provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A. VA's Duty To Assist The Secretary has a duty to assist a claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C. § 5103A(a)(1). The Secretary's duty to assist includes making "reasonable efforts to obtain relevant records . . . that the claimant adequately identifies to the Secretary and authorizes the Secretaryto obtain." 38 U.S.C. § 5103A(b)(1); see Moore v. Shinseki, 555 F.3d 1369, 1372-75 (Fed. Cir. 2009). If the records are maintained by a Federal department or agency, "efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." 38 U.S.C. § 5103A(b)(3); 38 C.F.R. § 3.159(e) (2011). If the Secretary is unable to obtain those records after making reasonable efforts to do so, the Secretary must provide notice of that fact to the claimant. See 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e). The Board's determination that VA 6 has satisfied the duty to assist is reviewed under the "clearly erroneous" standard of review. Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007). As this Court has explained on numerous occasions, "the duty to assist is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim." Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992) (noting that the duty to assist is "not a duty to prove a claim with the claimant only in a passive role"); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991) ( stating that "[t]he duty to assist is not a one-way street"). As noted above, the appellant argues that the Secretary should have undertaken a search for pertinent unit histories and morning reports to corroborate his assertion that he engaged in combat with the enemy. Appellant's Br. at 9-13. In response, the Secretary argues that VA was under no obligation to develop a claim for PTSD based on combat exposure because the appellant failed to respond to VA's request for information and his VA Form 9 specifically limited the issue on appeal to the denial of PTSD based on sexual trauma. Secretary's Br. at 6-10. The Court disagrees. As an initial matter, the Court is not persuaded bythe Secretary's argument that the appellant limited the issue on appeal. First, it is well established that the Board has a duty to address all theories of entitlement that are reasonably raised either by the appellant or by the contents of the record. See Robinson v. Peake, 21 Vet.App. 545, 552-56 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Indeed, the Court has stated that "[a]s a nonadversarial adjudicator, the Board's obligation to analyze claims goes beyond the arguments explicitly made." Id. at 563. Here, the record before the Board contained the appellant's lay assertions that he experienced combat in Vietnam and the March 2005 VA psychiatrist's opinion that attributes the appellant's PTSD in part to his combat experience. Second, and perhaps most compelling, is that the Board did not determine that the appellant abandoned the theory whether his PTSD is the result of combat stressors. Instead, the Board addressed that theory and found that the appellant's "service personnel records and the service treatment records do not show that the [ v]eteran experienced combat while in Vietnam" and that "[t]here is no evidence to verify that the [v]eteran experienced a night time incident with the enemy or that he ever experienced a combat situation." R. at 7; see Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 ( 1991) ("'[L]itigating 7 positions' are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court."). With regard to the Secretary's contention that the appellant failed to cooperate with VA's requests for information, the Court agrees with the appellant that his failure to cooperate fully with VA's request for information did not relieve VA of its duty to assist, if the Secretary had in his possession the information required to conduct a search to corroborate whether he engaged in combat. See Reply Br. at 4-5. Recently, the Court concluded that the Board erred when it failed to assign an earlier effective date based upon the receipt of newly discovered service department records pursuant to 38 C.F.R. § 3.156(c) (2002) and (2010), where the record demonstrated that, notwithstanding the veteran's failure to fully cooperate with VA's requests for information to verify other claimed stressors, the information necessary for the Center for Research of Unit Records to verify his stressor that resulted in the award of benefits for PTSD had always been a part of the claims file. See MayhueNext Hit v. Shinseki, 24 Vet.App. 273, 280 (2011). The Court stated that it was "VA's administrative error in failing to verify [the appellant's] stressor with the information that it had at the time of his initial claim, not [the appellant's] subsequent failure to provide additional informationsufficient to verifyotherclaimedstressors, thatpreventedVAfromverifyinghis stressor until March 2005." Id. Although Previous HitMayhueNext Hit is not directly on point, the Court's reasoning is instructive and supports the appellant's contention that, in this case, VA's duty to assist may have included conducting a search for the pertinent unit histories and morning reports from the Center for Research of Unit Records where the record contains specific information denoting the appellant's unit assignments, military occupation, and dates of deployment to Vietnam. See R. at 315-16, 425, 480, 487, 526. The Board, however, did not discuss whether VA was obligated to conduct a search for unit histories or morning reports to confirm whether the appellant engaged in combat during his service in Vietnam. Instead, the Board summarily stated that it was "unaware of any outstanding pertinent evidence." R. at 5. In this case, the Court concludes that it is unclear whether the appellant's inaction deprived VAoftheinformationneededtorequest records that maycorroborate his assertion that he engaged in combat. See Previous HitMayhueNext Document, 24 Vet.App. at 280 (noting VA's determination that the veteran was subject to enemy attack because the Center for Research of Unit Records verified that 8 the base camp to which the veteran was assigned was subjected to enemy attacks). As noted by the RO in its November 2005 rating decision, the record before the Agency contained the appellant's "[s]ervice records [that] show that [he] served in Vietnam from August 19, 1969[,] to October 3, 1969[,] as a Rifleman with Company A, 1st Battalion, 4th Marine Regiment, 3rd Marine Division." R. at 169. Given the relatively short period of time that the appellant served in Vietnam, the Court is unable to discern any basis for VA's failure to conduct a search for records to confirm the appellant's allegations that conducted "search [and] destroy missions or patrols" and "[c]ame in contact with enemy [North Vietnamese Army] regulars in a night time s[kir] mish (firefight)." R. at 220. The Board's failure to explain adequately why VA's duty to assist did not require the Secretary to conduct a search for unit histories or morning reports frustrates judicial review and requires that the matter be remanded. See Tucker v. West, 11 Vet.App. 369, 374 (1998) ( holding that remand is the appropriate remedy "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). B. The Board's Reasons and Bases The Court also agrees that the Board failed to provide an adequate statement of reasons or bases for finding that the appellant did not engage in combat. As noted above, the Board determined that the appellant did not engage in combat because his service personnel and treatment records did not show that he experienced combat. R. at 7. However, in reaching this determination, the Board failed to address the credibility and probative value of the appellant's lay statements that he engaged in combat. While the Board may discount favorable evidence if it finds that the evidence lacks probative value, the Board must provide an adequate statement of reasons or bases "for its rejection of any material evidence favorable to the claimant." See Thompson v. Gober, 14 Vet.App. 187, 188 (2000); Owens v. Brown, 7 Vet.App. 429, 433 (1995) ("It is the responsibility of the [Board] . . . to assess the credibility and weight to be given to evidence."). The Board cannot satisfy its reasons-or- bases requirement by merely listing evidence, nor is a recitation of the appellant's testimony a sufficient surrogate for an account of whether the Board finds the testimony persuasive. See Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing 9 Abernathy v. Principi, 3 Vet.App. 461, 465 (1992))). Here, the Board's failure to assess the credibility and probative value of the appellant's lay statements that he engaged in combat renders its statement of reasons or bases inadequate. See Gaines v. West, 11 Vet. App. 353, 359 (1998) (Board's failure to analyze the veteran's own sworn testimony that he engaged in combat rendered the Board's statement of reasons or bases inadequate); see generally Daye v. Nicholson, 20 Vet.App. 512, 517 (2006) (holding that the absence of awards or decorations that would confirm engagement in combat, does not preclude a finding that the veteran engaged in combat, and the Board erred to the extent that it relied on the absence of awards to conclude that the veteran did not participate in combat). Finally, the Court agrees with the appellant that the Board impermissibly ignored favorable medical evidence. In its decision, the Board noted that the appellant initially reported a PTSD diagnosis as a result of sexual trauma, but that in March and April 2005 statements, he "also reported that he had PTSD due to a night time fight with the enemy North Vietnamese Regulars." R. at 7. The Board continued its discussion bynoting that after April 2005, the appellant "onlyindicated that he had PTSD due to a personal assault" and that "none of the VA medical records have attributed the [v]eteran's claimed PTSD to combat activities, only to the [v]eteran's claimed personal assault." Id. (emphasis added). The latter statement is factually incorrect because it ignores the March 2005 VA psychiatrist's opinion that the appellant's "PTSD, depression[,] and poly substance abuse is a direct result of his experience in combat in Vietnam as well as his sexual assault while receiving treatment for his in[j]uries and infectious disease while on active duty." R. at 249. Accordingly, on remand, the Board must assess the credibility and probative value of the veteran's lay statements regarding combat, and address the March 2005 VA psychiatrist's opinion that attributes the appellant's PTSD in part to his combat experience. In pursuing these matters on remand, the appellant is free to submit additional evidence and argument, and the Board is required to consider any such relevant evidence and argument. See Kay v.Principi,16Vet.App.529,534(2002)(statingthat,onremand,theBoardmust consideradditional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 10 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112(requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court). III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the November 5, 2009, Board decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision. DATED: September 30, 2011 Copies to: Sean A. Ravin, Esq. VA General Counsel (027) 11