Citation Nr: 0000557 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 98-16 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a nervous condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. McCain Parson, Associate Counsel INTRODUCTION The veteran had active service from June 1972 to October 1973. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a June 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision the RO denied entitlement to service connection for PTSD, and determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a nervous condition. The veteran has perfected an appeal of that decision. The issue of whether new and material evidence has been presented to reopen the claim of entitlement to service connection for a nervous condition is addressed in the remand section of this decision. FINDING OF FACT The medical evidence indicates that the veteran has PTSD, he has provided lay evidence of an in-service stressor, and the medical evidence shows that the PTSD is related to the in- service stressor. CONCLUSION OF LAW The claim of entitlement to service connection for PTSD is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question that must be resolved with regard to the claim of entitlement to service connection for PTSD is whether the veteran has presented evidence that the claim is well grounded. 38 U.S.C.A. § 5107(a); Epps v. Brown, 9 Vet. App. 341 (1996), aff'd, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 118 S.Ct. 2348 (1998). A well grounded claim is a plausible claim, meaning a claim that appears to be meritorious on its own or capable of substantiation. Epps, 126 F.3d at 1468. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). In order to establish a well-grounded claim for service connection for PTSD, the veteran must provide 1) medical evidence showing a current diagnosis of PTSD; 2) lay evidence of having experienced a stressor during service; and 3) medical evidence of a nexus between the diagnosis of PTSD and the claimed in-service stressor. Gaines v. West, 11 Vet. App. 353 (1998). In determining whether the claim is well grounded, the evidence is generally presumed to be credible. See Arms v. West, 12 Vet. App. 188 (1999). Service department records reflect that the veteran was transferred to the U.S.S. Oriskany in December 1972 and reported for duty in January 1973. A June 1973 notation in the veteran's personnel file shows that he was advised that he could be separated because of his frequent involvement of a discreditable nature with military authorities and that failure to overcome his deficiencies could result in such separation. A July 1973 service medical record indicates that the veteran had been in the brig for 30 days due to a robbery, and that he was then in the brig for fighting. The medical record shows that he was depressed. The September 1973 separation physical examination reflects a normal psychiatric evaluation. The medical evidence indicates that the veteran has a long history of psychiatric treatment under various diagnoses and incarcerations for numerous criminal offenses. As the result of a psychiatric evaluation in May 1986 his symptoms were assessed as schizophrenia and paranoia. In February 1987 his psychiatric symptoms were described as depression and mood swings, and in January 1988 his symptoms were attributed to PTSD. In June 1988 he was hospitalized with diagnoses of an antisocial or borderline personality disorder, depression, cocaine dependence, and suicidality. Medical treatment records from a state mental hospital in October 1988 and January 1989 show diagnoses of polysubstance abuse and bipolar disorder, mixed type, with psychotic features. In a March 1998 medical report the veteran's treating therapist reported that he underwent treatment for polysubstance abuse and PTSD in 1997. The report of a March 1998 VA psychological evaluation shows that the testing results were not valid because the veteran had greatly exaggerated his psychiatric symptoms. During the evaluation he reported having served in combat in Vietnam, which is not supported by his service records. As a result of the psychological evaluation the VA psychologist determined that although the veteran had some symptoms of PTSD, the data did not support that diagnosis. The examiner provided a diagnosis of a bipolar disorder by history, polysubstance dependence, and to rule out an antisocial personality disorder. A July 1998 medical report shows that the veteran's PTSD is due to a sexual assault that occurred while he was in service. His degree of psychiatric disability due to PTSD was described as moderate to severe. A medical statement from a VA psychologist in November 1998 indicates that the veteran was sexually abused at the age of 12, at which time he began "acting out"; that he ran away from home at the age of 13; and that he joined the Navy at age 17. The statement also indicates that he reported having again been sexually abused by several service members aboard the U.S.S. Oriskany off the coast of Vietnam while taking a shower. He also stated that he was scared at the time the assault occurred because a man was missing off the ship and he was afraid that he would be thrown overboard. He reported that his military record was basically good until this time and that it was only after this incident that he began to incur severe disciplinary action which eventually resulted in his separation from service. The examiner noted that this second incident of sexual abuse further intensified his "tough guy persona," and that while some of the veteran's problems could be attributed to substance abuse and the lifestyle that so often occurred with substance use, it was also possible that his behavior was a reaction to the sexual abuse. The Board has reviewed the evidence of record and finds that the claim of entitlement to service connection for PTSD is well-grounded. The veteran has presented medical evidence of a current diagnosis of PTSD; lay evidence of having incurred a sexual trauma in service; and medical evidence of a nexus between the PTSD diagnosis and the sexual trauma. Gaines, 11 Vet. App. at 353. Because the claim is well grounded, VA has a duty to assist the veteran in developing the evidence relevant to the claim. Epps, 126 F.3d at 1468. Although the evidence is presumed to be credible for the purpose of determining whether the claim is well grounded, that presumption no longer applies in adjudicating the substantive merits of the claim. Evans v. West, 12 Vet. App. 22 (1998). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in- service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the verified in-service stressor. 38 C.F.R. § 3.304(f). In light of the conflicting psychiatric diagnoses that have been applied to the veteran's case and the absence in the service records of any documentation of the claimed sexual trauma, the Board finds that additional development is required prior to determining whether service connection for PTSD is warranted. ORDER The claim of entitlement to service connection for PTSD is well-grounded. REMAND The report of the March 1998 VA psychological evaluation shows that the veteran reported that three black shipmates raped him while showering. He reported that they teased him, hit him, threatened him with a gun, and forced him to have oral sex with them, and that they threatened to kill him and throw him overboard if he said anything. He stated that this scared him because a man was missing off the ship. He denied having reported the incident until he filed his service connection claim in 1997, and stated that no one could corroborate its occurrence. None of the veteran's service records indicate that a sexual assault occurred. In October 1997 the RO asked the veteran to provide specific information about his claimed in-service stressor, but did not provide the veteran the development letter to be used for verification of claimed personal assaults. In December 1997 the veteran provided a stressor statement detailing the above mentioned sexual assault. In that regard, the Board notes that the veteran's own statements cannot, as a matter of law, establish the occurrence of non-combat stressors. See Dizoglio v. Brown, 9 Vet. App. 163 (1996). The Veterans Benefits Administration Manual M21-1 (Manual M21-1) requires that "[i]n cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence." Manual M21-1, Part III, 5.14(b)(3) (April 30, 1996). As to personal assault PTSD claims, Manual M21-1, Part III, 5.14(c) indicates that a specific letter for the development of those claims must be provided to the veteran. As previously stated, the RO has not provided that letter to the veteran. Following the veteran's response to the letter, appropriate development should be undertaken to verify the veteran's claimed stressor. As noted in the November 1998 medical statement, the veteran reported that his military record was basically good until the sexual assault and that it was only after that incident that he began to incur severe disciplinary action. The Manual M21-1 provides that if the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an in-service stressful incident. Behavioral changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA psychiatrist. Manual M21-1, Part III, 5.14(c). On remand, in verifying the existence of an in-service stressor and any other material issue, the equipoise standard of proof, not the preponderance standard, must be applied. See Patton v. West, 12 Vet. App. 272 (1999); see also YR v. West, 11 Vet. App. 393, 399 (1998) ("[i]n a system where equipoise is the standard of proof, evidence of this nature cannot be ignored"). In addition, a remand is warranted to correct a procedural defect if it is essential for a proper appellate decision. 38 U.S.C.A. § 7104(a) (West 1991 & Supp. 1999); 38 C.F.R. §§ 19.9, 20.700 (1999). In July 1998 the veteran requested a personal hearing before the local hearings officer. In the September 1998 statement of the case, the RO acknowledged the veteran's request for a hearing, but the hearing has not been provided. Because there is no statement from the veteran or his representative withdrawing his hearing request, the RO should schedule the veteran for a hearing on the issues of service connection for PTSD and whether new and material evidence has been submitted to reopen a claim for service connection for a nervous condition. To ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to the claims and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should schedule the veteran for a personal hearing at the local office before a hearing officer, and associate with the claims folder a copy of the notice mailed to the veteran notifying him of the scheduled hearing and the hearing transcript. 2. The RO should complete the development required for adjudicating a PTSD claim based on personal assault in accordance with the Manual M21-1. The RO should give the veteran an appropriate time period within which to respond to any request for additional information. 3. The RO should obtain from the service department the veteran's entire personnel file to include any disciplinary actions and/or performance evaluations pertaining to him. 4. If the above-requested development results in confirmation that the alleged in-service sexual assault occurred, the veteran should be provided a VA psychiatric examination by a board of two psychiatrists for the purpose of obtaining an opinion on whether the veteran has PTSD as a result of the verified stressor. The claims file and a copy of this remand should be made available to and be reviewed by the examiners in conjunction with the examination. The examination should include any diagnostic tests or studies, such as psychological tests, that are deemed necessary for an accurate assessment. The examiners should conduct a thorough psychiatric evaluation of the veteran and, based on the available evidence and sound medical principles, provide a diagnosis of any pathology found. If the evaluation results in a diagnosis of PTSD, the examiners should identify and describe the stressor causing PTSD. Specifically, the examiners should provide an opinion on whether the verified in-service stressor caused the veteran to have PTSD. The examiners should also explain how the veteran's symptoms and stressor(s) meet the diagnostic criteria of the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The examiners should provide the complete rationale for all opinions given. 5. The RO should then review the claims file to ensure that all of the above requested development has been completed. In particular, the RO should ensure that the requested examination and opinions are in complete compliance with the directives of this remand and, if they are not, the RO should take corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After undertaking any additional development deemed appropriate in addition to that requested above, the RO should re-adjudicate the issues of entitlement to service connection for PTSD and whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a nervous condition. If any benefit requested on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be given the opportunity to respond. The case should then be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded to the regional office. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. N. W. Fabian Acting Board Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).