Citation Nr: 1736624	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-25 020	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Zimmerman, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from October 17, 1974 to January 22, 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.
 
The Veteran testified before the undersigned at a December 2015 hearing. 

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.

REMAND

The Veteran's stressor is based on having seen a fellow serviceman, whom he met briefly on leave but cannot identify, stabbed to death during an altercation outside a bar near Fisherman's Wharf in Monterey, California.  In the Boards September 2016 remand the AOJ was instructed to seek law enforcement records from Monterey, California confirming that a soldier had been stabbed between October 1974 and January 1975 at Fisherman's Wharf.  If the results were negative, the AOJ was instructed to contact the Department of the Army for reports of any service personnel serving at Fort Ord who were stabbed during the same time period.  

The AOJ sought records from the Monterey California Police Department, but only as to whether the Veteran was the victim of a stabbing.  The Monterey Police Department indicated that records from that period had been archived and that it would be "simply impossible to find such records" without an "actual definite date or case number."  Given that the Veteran has never been able to narrow the date of this event to a period smaller than one month, and claims to have left before the police arrived, a second request merely naming the Veteran as a witness instead of a victim would be futile.

Upon receiving a negative response, however, the AOJ sent records requests to the US Army Records Management, again listing the Veteran as the victim of the stabbing.  The Veteran has never claimed to have been the victim of the stabbing, and these requests do not comply with the requirements of Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance).  While the Board regrets the further delay to the Veteran, this matter must be remanded to ensure compliance with Stegall and VA's duty to assist the Veteran in gathering evidence to substantiate his claim.

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should contact the appropriate records repository to obtain reports of any service personnel serving at Fort Ord who were stabbed between October 1974 and January 1975.  Include an instruction that a response is necessary to adjudicate this matter, even if the response is negative.  The AOJ should make as many requests as are necessary to obtain these records unless and until the AOJ concludes that the records sought do not exist or that further efforts to obtain them would be futile.  Document the file appropriately.

2.  If any benefit sought on appeal is not granted, issue a supplemental statement of the case.  Then return the appeal to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).



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