David R. Gagne v. Robert A. McDonald
2015 U.S. Vet. App. LEXIS 1404
| Vet. App. | 2015Background
- Veteran David R. Gagne served in the Army (Dec 1966–Aug 1968), drove heavy vehicles with the 91st Engineer Company in Thailand/Vietnam, and reported witnessing a fatal truck accident in 1967–1968.
- He filed for PTSD service connection in Mar 2010 and reported symptoms; a VA psychiatrist diagnosed PTSD in Mar 2010.
- VA requested a 60-day date range to search unit records via the Joint Services Records Research Center (JSRRC); Gagne could not narrow the event to a single 60-day period.
- The regional office (RO) declined to submit JSRRC requests because the veteran did not provide the required 60-day window per M21-1MR; VA denied the claim partly on lack of corroboration.
- The Board affirmed in Nov 2013, finding the stressor uncorroborated; the Court reviewed whether VA satisfied its statutory duty to assist under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VA satisfied its duty to assist by not submitting JSRRC searches covering the veteran's full relevant service period | Gagne: VA must submit multiple 60-day JSRRC requests covering the whole service period when veteran cannot narrow dates; strict M21-1MR limitation frustrates § 5103A duty | Secretary: VA may deny JSRRC requests if veteran fails to provide minimum info (60-day window); JSRRC searches are limited to ±30 days of a date | Court: Vacated Board; remanded — VA must submit multiple 60-day JSRRC requests to cover the relevant service period because further searches were not shown to be futile |
| Whether M21-1MR's 60-day search requirement can limit statutory duty to assist | Gagne: M21-1MR cannot supplant statutory/regulatory duty; it should not bar repeated searches | Secretary: M21-1MR reflects JSRRC practice and permits denial if veteran provides insufficient info | Court: Did not invalidate M21-1MR generally, but held RO reliance on it here improperly ended § 5103A duties because burden on JSRRC ≠ futility |
| Definition of "futile" under § 3.159/§ 5103A in the context of record searches | Gagne: (implicit) searches across multiple 60-day increments are not futile when records may exist | Secretary: (at argument) conceded remand necessary; did not defend futility here | Court: "Futile" means records do not exist or are not in custodian's possession; difficulty or burden of search alone does not make it futile |
| Whether remand should be limited or the claim adjudicated on existing record | Gagne: seeks precedential rule invalidating M21-1MR requirement; wanted broader relief | Secretary: Agreed remand required for additional JSRRC searches but did not concede invalidation of M21-1MR | Court: Remanded for specific relief (multiple 60-day JSRRC requests); did not address other arguments or broadly invalidate M21-1MR |
Key Cases Cited
- Doran v. Brown, 6 Vet.App. 283 (1996) (non-combat PTSD claimant must provide credible supporting evidence for in-service stressor)
- Morton v. West, 12 Vet.App. 477 (1999) (prior rule limiting VA assistance that VCAA sought to overturn)
- Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (interpretation of "futile" in VA records-obtainment regulation)
- Todd v. McDonald, 27 Vet.App. 79 (2014) (quoting 38 C.F.R. § 3.159 and duty-to-assist principles)
- Gobber v. Derwinski, 2 Vet.App. 470 (1992) (duty to assist does not permit limitless "fishing expeditions")
- Kay v. Principi, 16 Vet.App. 529 (2002) (on submission of additional evidence after remand)
- Dunn v. West, 11 Vet.App. 462 (1998) (court may remand without addressing other claims)
- Pederson v. McDonald, 27 Vet.App. 276 (2015) (issues abandoned by appellant need not be addressed)