Citation Nr: 0010472 Decision Date: 04/20/00 Archive Date: 04/28/00 DOCKET NO. 97-24 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The veteran had military service from February 1977 to October 1977. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 1996 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the veteran's claim of entitlement to service connection for post-traumatic stress disorder (PTSD). A notice of disagreement was received in April 1997, and a statement of the case was issued in May 1997. The veteran addressed this issue at a subsequent hearing held at the RO in May 1997, and the transcript of her testimony constitutes a substantive appeal. FINDING OF FACT The claims file includes a medical diagnosis of PTSD, competent evidence of inservice incurrence or aggravation, and medical evidence of a nexus to service. CONCLUSION OF LAW The veteran's 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 Board notes that the RO initially determined in a February 1996 rating decision that the veteran's PTSD claim was not well-grounded. The RO notified the veteran to submit additional evidence to well-ground the claim. Additional evidence was received and in the June 1996 rating decision from which the present appeal arises, the RO implicitly found the claim to be well-grounded, but denied on the merits. After reviewing the evidence, the Board agrees that the claim is well-grounded. The record includes several medical records which list PTSD as a diagnosis. Further, the veteran is competent for the purpose of providing evidence of inservice incurrence, and her bare assertions in this regard are sufficient. Finally, the Board observes that several medical reports appear to link the veteran's PTSD to her reports of inservice sexual assaults. For purposes of the well-grounded claim analysis, the evidence is presumed to be true. King v. Brown, 5 Vet.App. 19, 21 (1993). Under the circumstances, the Board finds that all of the requirements for a well-grounded service connection claim have been met in this case. 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet.App. 498, 506 (1995). ORDER The veteran's claim of entitlement to service connection for PTSD is well-grounded. To this extent, the appeal is granted subject to the provisions set forth in the following remand portion of this decision. REMAND The veteran asserts that her PTSD was caused by, or, in the alternative, aggravated by, her service. In particular, she asserts that she was raped and harassed during service on several occasions. Review of the record reveals that the RO has made numerous attempts to elicit details of the alleged assaults from the veteran. Two personal assault development letters were sent to the veteran in apparent compliance with the development provisions of VA Adjudication Procedure Manual M21-1, Part III, paragraph 5.14c. The veteran has claimed a number of incidents of sexual assault, physical assault and harassment. However, a review of her statements and testimony makes it unclear whether she is withdrawing some of these allegations, and it is unclear whether some of these incidents took place during active duty, active duty for training, inactive duty training, or as a civilian. It also appears that she may have told others about some of these incidents shortly after they occurred. In addition, she has indicated that she may be able to provide names and other identifying information of people who observed her behavior during service, or shortly thereafter, and who may be able to provide lay statements to this effect. Additionally, the veteran has testified that she was absent without leave (AWOL) shortly after a sexual assault in 1977, and that she may have received disciplinary action as a result, to include a reduction in grade. However, the veteran's disciplinary records are not associated with the claims files. Further, one reported incident involved a physical assault while the veteran was involved in training the Kansas City, Missouri, area (apparently in 1979). The veteran has reported that there should be both police and hospital records of such incident, but it does not appear that an attempt to locate any such records has been made, nor does the record appear to include any records regarding the reported military training. The Board notes that a recent decision by the Court, Patton v. West, 12 Vet. App. 272 (1999), addresses the particular development to be accomplished with regard to claims of service connection for PTSD based upon personal assault. With regard to personal assault cases, the Court pointed out that "VA has provided special evidentiary development procedures, including the interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis." (citing VA Adjudication Procedure Manual M21-1 (M21-1), Part III, 5.14c (8), (9)). The Court has also held that these provisions of M21-1, which provide special evidentiary procedures for PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations. Specifically, M21-1, Part III, 5.14c subparagraph (8) (redesignated PartVI, paragraph 11.38b(2)), provides that "[i]f the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an inservice stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. Examples of behavior changes that might indicate a stressor are (but not limited to): visits to a medical or counseling clinic or dispensary without specific diagnosis or specific ailment; changes in performance and performance evaluations; increased disregard for military or civilian authority; increased interest in tests for Human Immunodeficiency Virus (HIV) or sexually transmitted diseases; and breakup of a primary relationship." Further, with regard to personal assault claims, secondary evidence which documents behavior changes may require interpretation in relationship to the medical diagnosis by medical examiner. While it appears from the claims file that the RO has complied with most of the development provisions of M21-1 as set forth above, the Board believes that an attempt to obtain any available service records documenting disciplinary action against the veteran should be obtained as well as any service investigation reports of the alleged assaults. Further, an attempt to obtain police and hospital records should be made. In addition, review of a VA hospital report, dated in October 1994, and a letter from the Veterans' Center, dated in March 1996, shows that the veteran reported previously making a number of suicide attempts, to include drug overdoses and cutting her wrists. Such records of treatment are not currently associated with the claims files, and should be obtained. Also, although the veteran has received treatment at the Veterans Center ("Vet Center") in Fort Worth, Texas, the claims files do not currently contain these records, or otherwise contain any documentation indicating that these records are unavailable. On remand, an attempt should be made to obtain these records. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Court has recently held that when treatment records from a VA Veterans Center are relevant to a claim, they should be obtained even if summarizing letters or reports are included in the record. Dunn v. West, 11 Vet. App. 462 (1998). In addition, in this case the medical evidence shows a reported history of physical and sexual abuse in childhood, and the examiner should comment on the presence or absence of other traumatic events and their relevance to the current symptoms. See M21-1, Part VI, 11.38e. At this point the Board stresses to the veteran and to her representative the need for the veteran's cooperation in furnishing as much detail as possible regarding each claimed incident. Based on the foregoing, additional development is necessary and this case is REMANDED to the RO for the following actions: 1. After obtaining any necessary authorization, the RO should attempt to obtain all records of treatment of the veteran from the Veterans' Center in Fort Worth, Texas. 2. The veteran should be furnished the current version of the appropriate development letter used in personal assault cases and she should be asked to complete it with as much detail as possible. The veteran should be asked to clarify the details of all claimed assaults, with approximate dates, locations and the names of any individuals involved. 3. The RO should consult M21-1, Part III, Change 49 (February 1996) par. 5.14c, "PTSD Claims Based on Personal Assault," and any subsequent changes, and take appropriate action to accomplish additional development to corroborate the veteran's claimed assaults, and conduct evidentiary development of the veteran's claim for PTSD in accordance with these provisions, including exploration of alternate sources in full compliance with pertinent M-21-1 provisions as more fully set forth and discussed in Patton v. West. In accomplishing this development, the RO should also attempt to verify with the service department whether the assaults claimed by the veteran were investigated and, if so, whether any disciplinary action was accomplished. An attempt to obtain all of the veteran's disciplinary records should also be accomplished in an attempt to ascertain the details of the claimed disciplinary actions. The RO should also take appropriate action to locate and obtain any reserve/National guard records, any local or military police reports, and hospital reports documenting the claimed assault while on training in Kansas City, Missouri. In this regard, the RO should ensure that the actions outlined in Deferred Rating Decision of July 28, 1997, are followed through with even if the veteran is unable to furnish any additional details. 4. In light of the evidentiary development of the veteran's claim for PTSD in accordance with the VA Adjudication Procedure Manual M21-1, Part III, Par. 5.14 (1996), the RO should determine if any secondary evidence received requires interpretation by a clinician and, if so, submit that evidence and the veteran's claims files to a VA psychiatrist for an interpretation of any documented behavioral changes in relationship to the diagnosis of PTSD. Any opinion expressed should be accompanied by a written rationale. 5. The RO should ensure that its efforts conform to all relevant provisions of Manual 21-1 regarding development in PTSD claims based on personal assault, to include undertaking all reasonable efforts to locate any witnesses identified, and, if located, to obtain statements from them regarding their knowledge of the veteran's alleged stressors. 6. If the RO determines that a inservice stressor has been verified, then the veteran should be scheduled for a VA psychiatric examination to determine whether the veteran has PTSD under the criteria as set forth in either DSM-III or DSM-IV. The RO should provide the examiner with a summary of the verified stressor(s), as well as the all evidence pertaining to changes in behavior at the time of the claimed stressors. The claims files should be provided to the examiner in connection with the examination. If the veteran has PTSD, the examiner should offer an opinion as to the relationship to the verified inservice stressors. The examiner should also comment on the presence or absence of other traumatic events (including preservice stressors) and their relevance to the PTSD. 7. The RO should then review the record and adjudicate the issue of service connection for PTSD. If the benefit sought is not granted, the veteran and her representative should be furnished a supplemental statement of the case, and be afforded an opportunity to respond before the case is returned to the Board for further review. The purpose of this remand is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran and her representative are free to submit any additional evidence she desires to have considered in connection with her current appeal. ALAN S. PEEVY Member, Board of Veterans' Appeals