Citation Nr: 0420246 Decision Date: 07/26/04 Archive Date: 08/04/04 DOCKET NO. 01-00 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD), with secondary bipolar disorder and depression. 2. Entitlement to service connection for migraine headaches. 3. Entitlement to service connection for genital warts with dysplasia. 4. Entitlement special monthly compensation based on the need for regular aid and attendance. 5. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and a friend ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The veteran served on active duty from July 1984 to August 1988. This matter originally came to the Board of Veterans' Appeals (Board) from a September 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which denied service connection for sinusitis, PTSD, migraine headaches, genital warts with dysplasia, as well as special monthly compensation and TDIU. The veteran duly appealed the RO's decision and in April 2000, she testified at a hearing before a Decision Review Officer at the RO. In a November 2003 decision, the Board granted service connection for sinusitis. The Board further determined that additional development was necessary with respect to the remaining issues on appeal. Pursuant to the authority granted by 38 C.F.R. § 19.9(a)(2), the Board undertook efforts to complete this necessary development. In November 2003, following the decision of the United States Court of Appeals for the Federal Circuit in Disabled American Veterans, et al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the Board remanded the matter to the RO for additional development and due process considerations. A review of the record shows that the RO has complied with all remand instructions to the extent possible. Stegall v. West, 11 Vet. App. 268 (1998). As set forth in more detail below, a remand of the issue of service connection for PTSD with secondary bipolar disorder and depression, and the issues of entitlement special monthly compensation based on the need for regular aid and attendance and TDIU, is required. These claims will be remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The most probative evidence of record indicates that the veteran's current migraine headache disorder was not incurred in or aggravated by service. 2. Genital warts with dysplasia were not shown in service and the record contains no indication that the veteran currently has genital warts with dysplasia which is causally related to her active service or any incident therein. CONCLUSIONS OF LAW 1. Migraine headaches were not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2003). 2. Genital warts with dysplasia were not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that VA has satisfied its duties to the veteran under the Veterans Claims Assistance Act of 2000 (VCAA). In a March 2001 letter, the RO notified the veteran of the information and evidence needed to substantiate and complete her claims, and of what part of that evidence she was to provide and what part VA would attempt to obtain for her. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2003); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also generally advised the veteran to submit or identify any additional evidence she felt would support her claim. Pelegrini v. Principi (Pelegrini II), No. 01-944 (U.S. Vet. App. June 24, 2004)17 Vet. App. 412 (2004). Here, it is noted that the original rating decision on appeal which denied the veteran's claims was dated in September 1999, prior to the enactment of the VCAA. Obviously, therefore, the veteran did not receive a VCAA notice prior to the initial rating decision denying her claims. Nonetheless, the Board finds that the lack of such a pre-decision notice is not prejudicial to the veteran. The VCAA notice was provided by the RO prior to the transfer and certification of the veteran's case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). The veteran is represented and has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notices. Therefore, not withstanding Pelegrini, to decide the appeal would not be prejudicial to the veteran. Under the VCAA, VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2003). In this case, the veteran's service medical records are on file and the RO has duly requested all post-service VA and private medical records identified by the veteran. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2003). It is noted that the veteran claims that she was diagnosed as having genital warts in December 1988 by Dr. Linda Fay. In a July 1999 letter, the RO duly contacted Dr. Fay at the address provided by the veteran and requested copies of pertinent treatment records. The letter was returned as undeliverable. The RO advised the veteran of this fact and she has since indicated that Dr. Fay's records are unavailable. The Board notes that the medical evidence currently of record is entirely silent for any notation of genital warts. In a March 2003 letter, the Board asked the veteran to submit or identify medical records corresponding to treatment for genital warts, as well as for headaches, from 1988 to the present. The veteran did not respond. After a review of the four volume record in this case, the Board finds no indication of any available, pertinent, outstanding private medical evidence specifically identified by the veteran, nor is there any indication that outstanding Federal department or agency records exist that should be requested in connection with the claims adjudicated in this decision. 38 U.S.C.A. § 5103A(b), (c)(3) (West 2002); 38 C.F.R. § 3.159(c)(1), (2) (2003). The record also shows that the veteran has been afforded a VA medical examination in connection with her claim of service connection for headaches. Although she was not afforded a VA medical examination in connection with her claim of service connection for genital warts with dysplasia, given the facts of this case, the Board finds that an additional medical examination is not necessary; rather, it is appropriate to proceed with consideration of the veteran's appeal based on the evidence of record. See 38 C.F.R. § 3.159(c)(4). For the reasons set forth above, the Board concludes that VA has fulfilled its VCAA duties to assist and notify the veteran. Thus, the Board finds that no additional action is necessary. I. Factual Background At her July 1983 military entrance medical examination, the veteran reported a history of changes in her menstrual pattern in the last five months. No pertinent abnormalities were noted on clinical evaluation. In-service medical records show that in July and September 1984, and in June 1985, the veteran requested a refill of her prescription for oral contraceptives. No pertinent gynecological complaints or abnormalities were identified. In January 1986, the veteran again requested a prescription for oral contraceptives. She denied having any medical problems. Vaginal examination revealed moderate erosion of the cervix, but the remainder of the examination was normal. The assessment was moderate cervical erosion. In April 1986, the veteran sought emergency treatment after she was involved in an automobile accident. Multiple contusions were noted. Two days later, she again sought treatment, claiming that she had been experiencing headaches, blurred vision, loss of memory, and dizziness. She claimed that she had sustained a head injury in a car accident two days prior, although she also indicated that she did not remember the accident. The assessments included concussion. Thereafter, the veteran sought treatment on numerous occasions for complaints associated with the car accident, such as bruises and neck pain. These records are negative for complaints of findings of headaches. In August 1986, the veteran sought treatment for pain during intercourse. The assessment was right salpingitis. In August 1987, the veteran sought treatment for vaginal discharge and itching. The assessment was yeast vaginitis and medication was prescribed. In September 1987, the veteran underwent gynecological examination, the results of which were normal. Oral contraceptives were again prescribed. In October 1987, the veteran sought treatment for bilateral temporal headaches, which she indicated had been present for the past five days. She reported that she was sexually active and was on birth control medication. She also reported that she had been under stress lately, although the cause of her stress had resolved in the past couple of days. Examination was negative. The assessment was cephalagia of questionable etiology. The following week, the veteran again sought treatment for headaches, which she reported had been present for the past two weeks. She reported that her headaches had begun after she began taking birth control medication, but had stopped after she discontinued the medication. Examination was normal and the assessment was suspect headaches associated with Lo Ovral, the veteran's oral contraceptives. Her medication was changed and in November 1987, she was reevaluated for additional side effects. Gynecologic cytology was negative and physical examination was within normal limits. The assessment was oral contraceptives adjustment. In June 1988, the veteran sought treatment for a pregnancy test. She indicated that her last menstrual period had been on April 15, 1988. The results of the test were positive and it was noted that she was 8 weeks pregnant. She was scheduled for further prenatal examination and education in July 1988. In July 1988, the veteran underwent a prenatal and pregnancy examination. She reported that she was married and that her last menstrual period was on April 15, 1988. Examination was normal, including the veteran's external genitalia. The examiner indicated that he anticipated that the veteran would have a normal delivery in January 1989. Of record is a paternity report showing that the father of the veteran's baby was not her ex-husband, whom she has accused of sexually assaulting her. Later in July 1988, the veteran was seen with complaints of a white vaginal discharge. It was noted that she was 13 to 14 weeks pregnant. The assessment was yeast vaginitis. According to her service personnel records, the veteran thereafter elected separation from service by reason of her pregnancy. A review of her service personnel records is otherwise negative for pertinent notations. At her July 1988 military separation medical examination, it was noted that the veteran was 14 weeks pregnant. No other pertinent conditions were noted. The examiner indicated that no neurological and psychiatric abnormalities were present. Pelvic examination was also normal, but for the veteran's pregnancy. Mental status evaluation revealed that the veteran's behavior was normal, she was fully alert and oriented, her mood and affect were unremarkable, her thought process was clear, memory was good, and thought content was normal. On a report of medical history, the veteran denied frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. She further denied frequent or severe headaches, skin diseases, and indicated that she had never been treated for "a female disorder." In January 1999, the veteran filed an application for VA compensation benefits, including service connection for PTSD, depression, bipolar disorder, and dysphoric disorder, which she claimed was a result of a sexual assault in service. She also claimed entitlement to sinusitis, TDIU, and aid and attendance benefits. In an attached statement, the veteran claimed that she and her then-husband had been separated and living apart in 1988. On the night before Easter in April 1988, she claimed that her husband came over to her apartment. She stated that after they talked and drank alcohol, he asked for intercourse, which she refused. The veteran indicated that her husband then sexually assaulted her. The veteran claimed that she called the military police immediately after the assault and they laughed and refused to take the report since "[t]hey consider[ed] the sexual assault a marital privilege, so no report was filed." She further indicated that she considered the incident humiliating and painful and did not share it her friends or any family members. In support of her claim, the veteran submitted selected VA, private, and military clinical records, dated from May 1990 to January 1999. These records show that the veteran was seen during this period for a host of complaints. In November 1990, a pap smear showed mild dysplasia and a coloposcopy and biopsy was recommended. In May 1991, the veteran delivered a baby without pertinent complications. In August 1991, a cervical biopsy was performed to rule out dysplasia. The results showed mild cervical inflammation with associated mild reactive atypia. There was no evidence of dysplastic involvement, but a follow-up pap smear was recommended. Gynecological examination in August 1991 was otherwise normal. In April 1992, the veteran claimed that she had had dysplasia since a cervical biopsy six months ago. She also claimed to have pain in the cervix with deep penetration. The assessment was dysplasia with vague cervical tenderness. In June and July 1992, the veteran complained of headaches. The assessment was possible menstrual induced headaches, possible tension headaches. In August 1992, she was treated for vaginitis and was diagnosed as having a sexually transmitted disease. In May 1993, the veteran was screened at the psychiatry clinic for depression. In June 1993, the veteran complained of menstrual symptoms. She reported a history of abnormal pap tests, but denied other gynecological problems. Pelvic examination revealed no pertinent abnormalities. The assessment was DVB, rule out fibroids. On further evaluation in the OB-GYN clinic, the veteran reported night sweats and mood swings. Examination revealed no pertinent abnormalities. The assessment was oligomenerrhea and normal uterus. In July 1993, the veteran again complained of chronic migraine headaches, as well as mood swings. She was thereafter seen on a regular basis in connection with her complaints of headaches, as well as depression. In September 1993, the veteran complained of headaches and depression. She claimed that her headaches had been present for the past 20 years. In October 1993, she reported that she had suffered from headaches since the age of 7, but that they had worsened in the last year. She also claimed that she felt depressed. She indicated that she formerly felt depressed only during menses, but indicated that she had more recently experienced depression at other times. Physical examination was normal, including examination of the genitalia. The diagnoses included chronic common migraine versus tension vascular headaches, and mild chronic depression. Subsequent clinical records show continued complaints of headaches and depression. In a June 1995 letter, a private physician indicated that the veteran was a patient in his clinic and that he had treated her in July and August 1995. Based on notes made by another physician, he indicated that the veteran had been diagnosed as having major depression, PTSD, late lutial phase dysphoric disorder, and bulimia nervosa. He indicated that the possibility of mixed bipolar disorder should also be considered. In March 1996, the veteran was hospitalized with complaints of various psychiatric symptoms, including periodic hypomanic episodes. She also reported the onset of periods of depression beginning with the birth of her first child and intensified by her menstrual cycle. The veteran also reported childhood sexual abuse by a cousin, but did not report the alleged in-service rape by her husband. The diagnoses included bipolar disorder and migraine headaches. Subsequent records from this facility, including a September 1996 disability report, note that the veteran had a history of psychiatric hospitalizations beginning in 1991. Complete VA clinical records were thereafter obtained by the RO, dated from September 1998 to April 2004. In pertinent part, these records show that the veteran was seen during this period for numerous complaints, including headaches. The veteran underwent numerous CT scans between September 1998 and January 2003; the results of these studies were consistently normal, as were neurological examinations. The diagnoses included migraine headaches. These records also show that the veteran had various gynecological complaints during this period, including such as PMS and dysmenorrhea. It was noted that she had undergone a hysterectomy in June 1999 for endometriosis and dysmenorrhea, had surgery for a left ovarian cyst in December 1999, and underwent a left oophorectomy in July 2000. Thereafter, it was noted that she had surgically induced menopause and was on hormone replacement therapy. Annual gynecological examinations performed in February 1999, February 2000, February 2001, and February 2002, were negative for pertinent abnormalities. In February 1999, the veteran underwent a pelvic ultrasound in connection with her complaints of severe dysmenorrhea to rule out fibroid. The result of the study were normal, as was laboratory testing. These records are entirely negative for any notations of genital warts or dysplasia. In a June 1999 statement, the veteran claimed that she had been diagnosed as having genital warts in December 1988, at the time of the birth of her child. She indicated that "[m]y ex-husband that assaulted me infected me." She indicated that thereafter, "[m]edical complications being genital warts continued on to the next pregnancy in 1991." In June 1999, the veteran underwent VA medical examination at which she complained of recurrent headaches associated with her menstrual cycle. She also indicated that she had recently undergone a hysterectomy. Examination revealed that the veteran was not legally blind, bedridden, and had no functional impairment of her extremities. The veteran was able to walk as far as she wanted and used no mechanical aids for ambulation. She stated that she was unemployed and usually spent the day resting. The diagnosis was migraine headaches. At an April 2000 hearing, the veteran testified that she was raped by her husband in service, resulting in PTSD with secondary psychiatric disorders, as well as genital warts with dysplasia. The veteran also testified regarding her migraine headaches, stating that she had had to seek emergency treatment for headaches on several occasions. The veteran was afforded a VA neurological examination in May 2003, at which she claimed that her headaches had started in service, although she could not recall the exact year. She further claimed that her current headaches were of the same character as during service, but noted that they had gradually worsened since that time. She stated that her headache triggers included stress, perfume, tobacco, the smell of coffee, certain noises, and decreased sleep. The examiner indicated that after a careful review of the veteran's claims file, it was his opinion that her current migraine headaches were not related to her active service or any incident therein, including the headaches she experienced in service. He noted that the veteran's history was inconsistent, in that some records note that she reported a history of headaches since the age of seven. He also noted that she did not report changes in her headaches with menstruation, as she had previously reported. II. Laws and Regulations Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2003). Where a veteran served ninety days or more during a period of war and certain chronic diseases, including an organic disease of the nervous system, become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2003). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under applicable criteria, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (holding that a claimant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail). III. Analysis Migraine headaches: The veteran argues that service connection for migraine headaches is warranted as she suffered from migraine headaches in service and continuously thereafter. The record, however, does not support her contentions. Service medical records show that she complained of headaches in April 1986 following an automobile accident. She also complained of headaches in October 1987, which were associated with her oral contraceptives and apparently resolved with a change in medication. The remaining service medical records are negative for notations of headaches and a chronic headache disorder, including migraine headaches, was not diagnosed in service. In fact, at her July 1988 military separation medical examination, no neurological abnormalities were present and on a report of medical history, the veteran specifically denied frequent or severe headaches. The first post-service notation of headaches is in June 1992, approximately four years after the veteran's separation from active service. A migraine headache disorder was diagnosed in 1993. None of the post-service medical evidence, however, attributes the veteran's current headache disorder to her active service or any incident therein. Moreover, the Board notes that in May 2003, a VA examiner reviewed the veteran's claims folder and concluded that her post-service migraine headache disorder was not causally related to her active service or any incident therein. The Board finds that this medical opinion is of great probative value, as it was based on an examination of the veteran, as well as a careful review of her entire claims folder. See Bloom v. West, 12 Vet. App. 185, 187 (1999). There is no other medical evidence of record which contradicts this opinion. The Board has also considered the provisions of 38 C.F.R. § 3.303(b), but notes that based on the evidence set forth above, it cannot be concluded that the veteran's in-service headaches were chronic in nature. Moreover, while she claims to have experienced chronic headaches on a continuous basis after service, the record contains a four-year gap after her separation from service. While the concept of continuity of symptomatology focuses on continuity of symptoms, not treatment, in a merits context, the lack of evidence of treatment bears upon the credibility of the evidence of continuity. See Savage v. Gober, 10 Vet. App. 488, 496 (1997). The Board has also considered the veteran's assertions to the effect that she currently has migraine headaches which are related to her active service. Such an opinion, however, is clearly a matter for an individual with medical knowledge and expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while the Board has considered the veteran's lay assertions, they do not outweigh the medical evidence of record which indicates that her current migraine headache disorder is not related to her active service. This is a case where the preponderance of the evidence is against the claims and the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b)(West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Genital warts with dysplasia: The veteran also claims entitlement to service connection for genital warts with dysplasia. She claims that she was diagnosed as having genital warts in 1988, although records of that treatment are unavailable. She indicates that it is her belief that she developed genital warts as a result of being sexually assaulted by her husband in 1988. As a preliminary matter, the Board notes that the veteran's service medical records are entirely negative for any notation of genital warts or dysplasia. Indeed, she repeated gynecological examinations in service were entirely negative for any notation of genital warts or dysplasia. At her July 1988 military separation medical examination, pelvic examination was normal and on a report of medical history, the veteran denied skin diseases and indicated that she had never been treated for "a female disorder." Likewise, the post-service medical evidence is entirely negative for any diagnosis of genital warts. Although mild dysplasia was noted on a November 1990 pap smear and at an April 1992 clinic visit, subsequent testing was negative, including at annual gynecological examinations between 1999 and 2001. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997). It is now well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service- connected disease or injury to cases where such incidents had resulted in a disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). Here, the Board notes that it has considered the veteran's assertions to the effect that she developed genital warts with subsequent gynecological complications as a result of an in-service sexual assault. As the record does not establish that the veteran possesses a recognized degree of medical training or knowledge, however, her opinions as to medical diagnoses or causation are not probative. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In addition, although the veteran claims she was told she had genital warts in 1988, records of that treatment are unavailable. The Board therefore must assign little probative weight to these statements, considering that "the connection between what a physician said and the layman's account of what he purportedly said," when filtered through a "layman's sensibilities" is "attenuated and inherently unreliable." See Robinette v. Brown, 8 Vet. App. 69, 77 (1995); see also Dean v. Brown, 8 Vet. App. 449 (1995). Having carefully examined all evidence of record in light of the applicable law, the Board has concluded that there is no probative evidence that the veteran currently has genital warts with dysplasia which is causally related to active service or any incident therein. As noted, absent proof of a present disability, there can be no valid claim. Since there is no medical evidence of current existence of genital warts with dysplasia, service connection cannot be granted. Brammer, 3 Vet. App. at 225. It is also noted that the veteran's assertions in this appeal have been vague. To the extent that she claims that she has any additional gynecological complications as a result of the claimed in-service assault, the record contains absolutely no probative evidence to support her assertions. Espiritu, 2 Vet. App. 494. In summary, absent evidence of genital warts or dysplasia in service or currently, and absent any indication that any current gynecological disorder is causally related to the veteran's active service or any incident therein, service connection is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b)(West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for migraine headaches is denied. Entitlement to service connection for genital warts with dysplasia is denied. REMAND The veteran also claims entitlement to service connection for PTSD with secondary bipolar disorder and depression. Specifically, she claims that in April 1988, she was sexually assaulted by her then-husband. She acknowledges that a report of this alleged assault was never made by law enforcement authorities, nor did she share this incident with any of her friends or family members. Although this appears to be the primary stressor claimed by the veteran, she has also alleged other in-service stressful incidents. For example, in a December 2000 statement, she claimed that her then-husband tried to throw her off a seventh floor balcony. In addition, the Board notes that in December 1999, in a clinical setting, the veteran claimed that she was sexually harassed in service, that other women in her unit made sexual advances toward her, and that she was "pretty much touched everywhere" while in the shower during basic training. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f), 4.125(a) (2003). Where, as here, the veteran's claimed stressor is not related to combat, the U.S. Court of Appeals for Veterans Claims (Court) has held that "credible supporting evidence" means that the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor, nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. See Cohen v. Brown, 10 Vet. App. 128 (1997). Rather, the record must contain service records or other independent credible evidence to corroborate the veteran's testimony as to the alleged stressors. Dizolgio v. Brown, 9 Vet. App. 163, 166 (1996). In this case, the veteran has submitted medical evidence which contains a diagnosis of PTSD linked to the claimed in- service sexual assault by her then-husband. There is no medical evidence linking her PTSD or other psychiatric disorder to any other claimed stressor. As the record currently stands, however, there is no credible supporting evidence that any of the veteran's claimed in-service stressor(s) actually occurred, to include the alleged April 1988 sexual assault. In that regard, the RO has duly obtained a complete copy of the veteran's service medical and personnel records, which are negative for any indication of sexual assault or harassment. These records are also negative for any evidence of behavior changes following the claimed assault(s), such as deterioration in work performance, substance abuse, etc. In addition, the veteran has acknowledged that a report of the claimed April 1988 assault was never made by law enforcement agencies; she also states that she did not report the alleged assault to friends or family members. The RO has concluded that it has exhausted every possible avenue of development regarding the veteran's claimed stressor(s). See e.g. October 2000 Report of Contact. Under 38 C.F.R. § 3.304(f)(3), VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. In this case, because the record contains no credible supporting evidence that the veteran's claimed stressors occurred, and because she has not yet received the required notification, a remand for this action is now necessary. In addition, the veteran has reported in clinical settings that she is receiving disability benefits from the Social Security Administration for a psychiatric disability. These records must be obtained by the RO. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2003). Moreover, given the nature of the veteran's claims, the Board finds that the issues of entitlement to aid and attendance benefits and TDIU should be held in abeyance, pending RO action on the PTSD claim. These claims are inextricably intertwined and must be considered together. See Henderson v. West, 12 Vet. App. 11 (1998); Harris v. Derwinski, 1 Vet. App. 180 (1991). In light of the foregoing, the matter is REMANDED for the following: 1. The RO should send an appropriate letter to the veteran advising her that evidence from sources other than her service records or evidence of behavior changes may constitute credible supporting evidence of her claimed in- service stressor(s). She should be afforded the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 2. The RO should contact the SSA and secure a copy of any decision awarding or denying her disability benefits, as well as copies of all supporting medical records utilized in making that decision. 3. The RO should then reconsider the veteran's claim. If the benefits sought on appeal remain denied, the veteran and any representative should be provided a supplemental statement of the case and an opportunity to respond. The case should then be returned to the Board, if in order. The veteran 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2