Gagne v. McDonald


Gagne v. McDonald, 27 Vet.App. 397 (October 19, 2015)
Held: The duty to assist a veteran in obtaining service records to corroborate the occurrence of a stressor event requires VA to make as many requests as necessary – each encompassing a different 60-day period – unless/until it becomes futile to do so.

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    Veteran filed a claim for service connection for PTSD based on an incident in service where he saw his sergeant crushed between two vehicles “sometime in 1967 or 1968” when he was operating a dump truck. The VA Regional Office (RO) asked the veteran to provide “the approximate time (a 2-month specific date range) of the stressful event(s) in question.” The veteran responded by informing the RO that all the evidence had been submitted and asked for a decision to be issued soon. In a subsequent letter, the veteran could not provide a specific month and year, but his service records showed that he was a dump truck driver from August 1967 to August 1968.

    The RO again requested a 60-day timeframe from the veteran. He did not respond, and the RO issued a formal finding that it was unable to verify his in-service stressor because the information provided was insufficient. The RO then denied the claim because “the available evidence is insufficient to corroborate any of the events you described.”

    The veteran submitted a statement to the RO, stating that he had requested records from the National Personnel Records Center and was waiting for a response. He appealed the denial and requested review by a Decision Review Officer (DRO). The RO never sought additional information from the veteran to allow for a search for records. The RO continued to deny his claim based, in part, on the lack of “credible evidence that the claimed stressors occurred.”

    The veteran appealed and the Board affirmed the denial, noting the RO’s formal finding that the information provided was insufficient to send to the Joint Services Records Research Center (JSRRC).

    On appeal to the CAVC, the veteran argued that VA did not satisfy its statutory duty to assist because it did not submit “multiple 60-day searches for records, each search covering a different 60-day period” and did not search for documents on VA’s Compensation Service Intranet Site, as required by its policy manual. At oral argument, the Secretary conceded that remand was warranted so that VA could “ask the JSRRC to conduct multiple searches of the [veteran’s] chronological records in enough 60-day increments to cover the entire relevant service period.”

    The Court discussed the relevant duty-to-assist statutes and regulations, and held that “VA’s duty to search for records that would assist a veteran in the development of his claim, and for which the veteran has provided the Secretary information sufficient to locate such records, includes making as many requests as are necessary and ends only when such a search would become ‘futile.’” Drawing on Federal Circuit precedent, a dictionary definition, and the legislative history of the Veterans Claims Assistance Act of 2000 (VCAA), the Court defined a “futile” search as one “where it is apparent that the sought-after records are either not in existence or not in the possession of the record’s custodian.” The Court agreed with both parties that, in this context, “the duty to assist required VA to submit multiple 60-day record searches.” The Court did not question the requirement of a 2-month timeframe for JSRRC searches, but found that the 13-month period in this case was not “unreasonably long.” The Court remanded for VA to submit multiple request for records to the JSRRC – each encompassing a different 60-day period to cover the veteran’s service period from August 1967 to August 1968.

Category: Veterans’ Law