Citation Nr: 0004363 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 95-14 941 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Schlosser, Associate Counsel INTRODUCTION The veteran had active military service from August 1972 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1994 rating decision in which the RO denied service connection for PTSD. The veteran appealed and was afforded a hearing at the RO in January 1997. In July 1999, the veteran appeared for a hearing before the undersigned Member of the Board in Washington, D.C. REMAND The veteran and his representative contend, in essence, that he should be service connected for PTSD. Specifically, the veteran maintains that he was beaten and otherwise assaulted by military policemen while he was incarcerated in the stockade in service. He contends that his PTSD is a result of his experiences during that period of incarceration. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with the provisions of 38 C.F.R. § 4.125 (a); 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) 1999; Cohen v. Brown, 10 Vet. App. 128 (1997). Following a complete review of the claims folder, the Board finds that further development is required. The service medical records reflect that the veteran was counseled in service after exhibiting repeated lack of initiative and poor attitude. He was arrested for shoplifting from the base PX and was away without leave (AWOL) on several occasions. The veteran was incarcerated in February 1974 and remained in custody until his discharge from service in April 1974. The veteran was initially discharged under "other than honorable circumstances." The veteran's character of discharge was subsequently upgraded to "under honorable conditions." The last in-service physical examination of the veteran in January 1974 did not reflect any diagnosis of PTSD or other psychiatric pathology. On VA psychiatric examination in September 1993, the veteran was diagnosed with a depressive disorder. On VA examination in June 1995, the veteran reported abuse and harassment by his superiors in service. He complained of anxiety, depression, nightmares, flashbacks, suicidal ideation, withdrawal, poor memory and fear. The diagnostic impression was depressive disorder. On VA psychiatric examination in August 1996, the veteran reported stressors in service including an incident in which an MP sergeant tried to choke him when he was in the stockade. He indicated that he had frequent nightmares pertaining to his military experiences. The diagnostic impression included chronic PTSD and dysthymia. The VA examiner indicated that the veteran met the DSM-IV criteria for PTSD despite never having engaged in combat. It was indicated that while he was in service, the veteran experienced events which involved threatened death or at least serious injury and his response was one of an intense fear. The VA examiner concluded that the results of psychological testing pointed towards the diagnosis of PTSD in addition to the veteran's mood disorder. During his RO hearing in January 1997, the veteran testified that his PTSD was the result of being physically assaulted, emotionally abused and mistreated while he was in the stockade. He said that he felt his life was being threatened. The veteran reported that he was picked on and subjected to racial taunts from others. The veteran said he could not remember the names of any of the guards who had assaulted him. He carried a knife for protection and became paranoid as a result of his experiences in the stockade. He reported having weekly therapy sessions, but said that he did not see a psychologist. A medical report was received from Arthur B. Fein, Ph.D., in September 1997, which noted diagnoses of PTSD, depression and substance abuse. Dr. Fein indicated that the veteran had been followed at the VA Medical Center (VAMC) in Brooklyn, New York, to include weekly psychotherapy sessions and Narcotics Anonymous (NA) meetings. Dr. Fein described the veteran's reported in-service experiences in the stockade and noted them to be severe. A Global Assessment of Functioning (GAF) score of 60 was provided, indicative of moderate impairment. During his hearing before the undersigned member of the Board in July 1999, the veteran testified that during his incarceration in service, the military policeman would put things in his food. He was put into solitary confinement. When he took his daily shower, the guards would turn the water so hot that it burned him and then switch it to very cold water; the door was locked and the veteran could not go anywhere. The veteran said that he was thrown on the ground by the guards and stripped of his clothes. He said that he was physically beaten almost every day. The veteran said that he has been treated at the VA hospital since 1976. He has been diagnosed with depression and PTSD. He reported having nightmares and trouble socializing with other people; several relationships have been ruined and he has tried to kill himself. The veteran indicated that he had no psychiatric problem prior to being in the military. The veteran indicated that he reported being hit and beaten to a base doctor; he refused treatment because of stories he had heard of the doctors abusing other men. The veteran said that he was beaten almost every day during his incarceration of some 60 days; he sought treatment from a doctor on February 23rd and 28th, and April 15th. He repeatedly testified that he feared for his life because the military policemen choked him and lifted him off of the ground by the neck. The veteran indicated that he first sought treatment for PTSD in the nineties and was diagnosed with that disorder in 1996 by a VA physician. The veteran indicated that he was continuing to participate in weekly individual psychotherapy sessions at the New York VAMC. He also said that he had been seen at the Ryerson Street psychiatric facility which is now the Brooklyn VA hospital. However, the most recent VA treatment records currently in the claims folder are dated in August 1996. Therefore, all outstanding treatment records should be obtained and associated with the claims file. The Board notes that that the veteran reported during his July 1999 hearing that he is in receipt of Social Security Disability benefit awarded, in part, for a psychiatric disorder. The Court has held that in such instances, and with regard to the issue before the Board on appeal, the award letter and the medical records underlying the award of Social Security Disability benefits must be obtained and reviewed by VA. Massors v. Derwinski, 2 Vet. App. 181 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Insofar as the veteran contends that he has PTSD due to noncombat stressors, the United States 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 noncombat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). The VA Adjudication Procedure Manual M21-1 (M21-1) provides that the required "credible supporting evidence" of a noncombat stressor "may be obtained from" service records or "other sources." M21-1, part VI, 7.46. In Patton v. West, 12 Vet. App. 272 (1999), the Court recently discussed the relevance of the above M21-1 provisions. In that case, the Court observed that such provisions provide, among other things, that the general PTSD stressor development letter is inappropriate for this type of claim, and state instead that the RO should rely on special letter formats expressly developed for use in personal assault claims. See M21-1, Part III, 5.14 (c)(4, 6 and 7). Specific to claims based upon personal assault, M21-1, part III, 5.14c provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred, to include statements from family members or clergy, as well as other evidence of behavioral changes to include as established by personnel and other records and lay statements. As such, on remand, the RO must ensure that the special evidentiary provisions relating to claims for service connection for PTSD based on a personal assault, which are contained in VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14, are complied with. In completing the actions requested on remand, the RO also should comply with the relevant M21-1 provision concerning the post-development determination as to whether a claimed stressor is (or, is not) established by the record. In this regard, the Board would emphasize that the requirement that credible evidence establish that the stressful event actually occurred does not mean that the evidence actually proves that the incident occurred, but, rather, that the preponderance of the evidence, as a whole, supports the conclusion that it occurred. See VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c)(3). Finally, if, after completion of the requested development, the RO determines that the occurrence of any stressful in- service experience is established, the RO should schedule the veteran to undergo psychiatric examination to determine whether such experience is of sufficient severity to result in a diagnosis of PTSD. In view of the foregoing, this matter is hereby REMANDED to the RO for the following action: 1. The RO should obtain and associate with the record copies of all documents pertaining to the veteran on file with the Social Security Administration, including a copy the decision awarding disability benefits and copies of all medical records associated with the veteran's application which supported the award of such benefits. 2. The RO should obtain and associate with the record all of the veteran's outstanding treatment records from the Brooklyn VA Hospital (to include records from the former Ryerson Street psychiatric facility) and the New York, New York VAMC, including the veteran's weekly psychotherapy treatments (since August 1996, the date of the most recent treatment records in the claims folder); and relevant records from any other source or facility identified by the veteran. 3. The RO should request that the veteran submit a list (concerning names, dates and addresses) for all alternative objective sources that may establish the occurrence of the claimed stressors. This should specifically include medical records from physicians or caregivers who may have treated the veteran either immediately following an incident or sometime thereafter; and military and/or civilian police reports. After securing any necessary release form(s), the RO should directly contact the sources that are identified, obtain copies of the relevant records in their possession that are not already in the claims file, and associate such records with the claims file. The aid of the veteran and his representative in securing such records should be enlisted, as needed. The veteran should be advised that this information is vitally necessary to obtain supportive evidence of the stressful event. 4. The RO should also request that the veteran submit signed statements from persons having personal knowledge of his claimed stressors, to include confidants such as family members, roommates, fellow service members or clergy. The veteran should be notified that statements from persons who knew the veteran during his period of active duty as well as subsequent to separation from military service will be considered. Each person's name and complete address should clearly be shown. Each statement should describe exactly what the person observed and mention specific dates and places. A person on active duty at the time should include his or her service number and military unit. The veteran should also submit copies of any personal diaries or journals pertaining to the occurrence of the claimed stressors. The veteran should be advised that this information is vitally necessary to obtain supportive evidence of the stressful event. 5. If, after undertaking the development set forth above, the RO determines that there is confirmation of the veteran being beaten or otherwise assaulted by military police in service, he should be accorded a VA psychiatric examination to ascertain the presence or absence of PTSD, and, if present, whether it is related to the veteran being assaulted in service. If the examination is conducted, the examiner must review the claims folder, including this remand, prior to the examination and so state in his report. If a diagnosis of PTSD is deemed appropriate, then the examiner should explain how the diagnostic criteria of the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and one or more of the in-service stressors found to be established by the record. If the RO determines that the reported beatings/assaults in service are not corroborated by independent evidence, the above-noted VA psychiatric examination need not be conducted. 6. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the aforementioned development action has been conducted and completed in full. If any requested development is not undertaken or is incomplete, appropriate corrective action is to be implemented. 7. The RO should review the veteran's claim for service connection for PTSD based on claimed in-service beatings and assualts, on the basis of all pertinent evidence of record. The RO should provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, specifically to VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14. In doing so, the RO must address all issues and concerns that were noted in this REMAND. 8. If the benefits sought by the veteran continue to be denied, he and his representative must be furnished a supplemental statement of the case and given an opportunity to submit written or other argument in response thereto before his case is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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. JACQUELINE E. MONROE Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. 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).