Citation Nr: 0013479 Decision Date: 05/22/00 Archive Date: 05/30/00 DOCKET NO. 98-19 453A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical and Regional Office Center (RO) in White River Junction, Vermont THE ISSUE Entitlement to service connection for psychiatric disability, including a major depressive disorder and post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from January 1980 to December 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision by the RO. The veteran was notified of the decision by a letter in May 1998. The veteran testified at a hearing at the RO in February 1999. FINDING OF FACT Evidence has been presented which implicitly links PTSD with the veteran's military service. CONCLUSION OF LAW The claim of service connection for psychiatric disability is well grounded. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDING AND CONCLUSION A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist her in developing the facts pertinent to her claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom, Epps v. West, 118 S. Ct. 2348 (1998). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that competent evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability, competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service, and competent (medical) evidence of a nexus between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d at 1468. Establishing service connection for PTSD requires that there must be medical evidence diagnosing the condition in accordance with 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 actually occurred. 38 C.F.R. § 3.304(f) (1999); 64 Fed. Reg. 32,807-32,808 (1999). Where it is determined that the veteran was engaged in combat with the enemy and the claimed stressor is related to such combat, the veteran's lay testimony regarding the claimed stressor is accepted as conclusive as to its actual existence absent clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); 64 Fed. Reg. 32,807-32,808 (1999). Where, however, VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is not related to such combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the veteran's testimony as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f); Cohen (Douglas) v. Brown, 10 Vet. App. 128 (1997). The veteran contends that she has major depressive disorder and PTSD because a male superior raped her on 30 or 40 occasions during service, from December 1980 to May 1982. She also reported that another male raped her on a date during the summer of 1981. She contends that, because she has had a dissociative defense syndrome, which caused her to dissociate herself from situations involving high stress or trauma, she took no affirmative action during the rapes, but did not consent to the sexual intercourse. Although the veteran's service medical records contain no indication of any in-service personal assault incident, the Board notes that her statements with respect to her in-service stressors are accepted as true for the purpose of determining whether the claim is well grounded. See King v. Brown, 5 Vet. App. 19, 21 (1993). The veteran's service medical records do include pre-service private treatment reports, dated from June 1978 to July 1979, which show that she experienced traumatic incidents. These incidents included being physically abused by her mother during early childhood, and being placed into foster care from age six to 12. At age 12, she attempted to live with her father and stepmother, but at age 14, was placed into another foster home. She was found to have adjustment reaction of adolescence with probable characteristics of borderline personality. It was noted that she would continue to need treatment and help with establishing and maintaining satisfying relationships. Post-service treatment records, statements from the veteran, and lay statements from an ex-boyfriend and friend, show that she has reported her in-service stressors, which she argues are the foundation of her current psychiatric problems, including PTSD. Of particular significance is a July 1996 VA examination report where the veteran reported her in-service rape incidents as well as having been sexually abused by her great uncle when she was a child. The examiner, who appeared to have relied on the veteran's account of what happened in service, provided diagnoses of PTSD and major depressive disorder. The examiner opined that the veteran's major depressive disorder was secondary to PTSD, and that PTSD was related to both the veteran's childhood and military experiences. The examiner further opined that it was only following the rape, and the veteran's entry into therapy, which reminded the veteran of both the rape and her childhood experiences, that the veteran developed the full criteria for PTSD. The reasonable inferences made from reading the July 1996 VA examiner's report, together with letters from the veteran, lead the Board to conclude that the veteran's claim of service connection for psychiatric disability is well grounded. In other words, there is a strong suggestion by competent authority that the veteran has PTSD that is linked to military service. Under these circumstances, the Board finds that the claim of service connection is well grounded. See 38 U.S.C.A. § 5107(a); Cohen (Douglas), 10 Vet. App. at 136-37. ORDER The claim of service connection for psychiatric disability is well grounded; to this extent, the appeal is granted. REMAND Because the Board has concluded that the claim of service connection is well grounded, VA has a duty to assist the veteran in the development of facts pertaining to her claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159; Epps, supra. As noted above, service connection for PTSD requires that there must be medical evidence diagnosing the condition in accordance with 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 actually occurred. 38 C.F.R. § 3.304(f) (1999). In this case, as there is no evidence that the veteran was engaged in combat with the enemy or that the claimed stressors are related to such combat, there must be corroborative evidence of the claimed in-service stressors. See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f); Cohen (Douglas), 10 Vet. App. at 138. Victims of in-service personal assault may find it difficult to produce evidence to support the occurrence of the stressor. Special evidentiary procedures for PTSD claims based on personal assault were consequently established in February 1996 in VA's Adjudication Procedure Manual, M21-1 (M21-1), Part III, para. 5.14c (Feb. 20, 1996), and were a substantially expanded version of former M21-1, Part III, para. 7.46c(2) (Oct. 11, 1995) (evidence of behavior changes that may indicate occurrence of personal assault as in- service stressor in PTSD context). See YR v. West, 11 Vet. App. 393, 398-99 (1998); Patton v. West, 12 Vet. App 272, 277 (1999). The Court has held that the M21-1 provisions in para 7.46 dealing with PTSD are substantive rules that are the equivalent of VA regulations. Cohen (Douglas), 10 Vet. App. at 139; Patton, 12 Vet. App at 277. Moreover, the Court has held that VA must follow the new provisions in para. 5.14c. YR, supra. (The new provisions of para. 5.14c were in effect at the time of the April 1997 RO decision.) Provisions of para. 5.14c describe the unique problems veterans face in documenting their claims for personal assault. It further details the sensitive nature of these cases, the development of evidence to support their claims, and examples of markers, or behavior changes/patterns that may have occurred at the time of the incident that may indicate the occurrence of an in-service stressor based on personal assault. See Patton, 12 Vet. App. at 278-80 (outlining VA process for seeking corroboration where unequivocal diagnosis of PTSD identifies stressor as personal assault during service). Specifically, M21-1, Part III, para. 5.14c, states in pertinent part: (1) Veterans claiming service connection for disability due to an in-service personal assault face unique problems documenting their claims. Personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking. Although most often these incidents involve female veterans, male veterans may also be involved. Care must be taken to tailor development for a male or female veteran. These incidents are often violent and may lead to the development of PTSD secondary to personal assault. It is possible for someone to develop symptoms of PTSD as a result of this type of stressful experience. . . . (2) Because assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in- service trauma may find it difficult to produce evidence to support the occurrence of the stressor. Therefore, alternative evidence must be sought. * * * (8) Rating board personnel must carefully evaluate all the available evidence. If the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an in-service 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): (a) Visits to medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; . . . (d) Changes in performance or performance evaluations; . . . (h) Evidence of substance abuse such as alcohol or drugs; (i) Increased disregard for military and civilian authority; (j) Obsessive behavior such as overeating or undereating; . . . (l) Increased interest in tests for HIV or sexually transmitted diseases; . . . (o) Breakup of a primary relationship. (9) Rating boards may rely on the preponderance of evidence to support their conclusions even if the record does not contain direct contemporary evidence. In personal assault claims, secondary evidence may need interpretation by a clinician, especially if it involves behavior changes. Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. M21-1, Part III, para. 5.14c(1)-(2), (8)(a), (8)(d), (8)(h)- (j), (8)(l), (8)(o), (9). Of particular pertinence to this case are the provisions of subparagraphs (8) and (9), above, stating that "behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor" (M21-1, Part III, para. 5.14c(8)), and that "secondary evidence may need interpretation by a clinician, especially if it involves behavior changes" and that "evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." (M21-1, Part III, para. 5.14c(9)). When read together, subparagraphs (8) and (9) show that in personal assault cases the Secretary has undertaken a special obligation to assist a claimant, here one who has submitted a well-grounded claim, in producing corroborating evidence of an in-service stressor. Based on a review of the record, the Board finds that the veteran exhibited behavior changes in service and agrees with May 13, 1997, letter from the Chief of Veterans Service Center to the Rating Board, May 16, 1997, letter from the Director to Director of Compensation and Pension (C&P) Service, and February 6, 1998, letter from the Director to Director of C&P Service, outlining the veteran's behavior changes. See M21-1, Part III, para. 5.14(c)(8). The veteran's behavior changes during service included, but not limited to, receiving treatment for sexually transmitted diseases and vaginal-related problems, receiving two non- judicial punishments resulting in two demotions, counseling for alcohol abuse, a breakup of her primary relationship (divorce), weight gain, and alcohol abuse. Because there is evidence of behavior changes, it should now be determined whether these changes indicate the occurrence of a stressor. Secondary evidence needs interpretation by a clinician, particularly if it involves behavior changes, and evidence that documents such behavior changes requires interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. M21-1, Part III, para. 5.14(c)(9); Patton, supra. The Board finds that this is especially true where the veteran now claims to have had a dissociative disorder that accounted for her behavior. The Board also notes that the April 1999 supplemental statement of the case (SSOC) indicates that the veteran testified at the RO in February 1999. The transcript of that hearing, however, has not been associated with the claims file and needs to be obtained. Finally, the Board finds that it would be useful to schedule the veteran for a VA psychiatric examination that takes into account any supporting evidence of the claimed stressors, or lack thereof, in light of the fact that the veteran has not had a formal VA examination since July 1996. 38 C.F.R. § 19.9 (1999). Accordingly, the case is REMANDED to the RO for the following: 1. The RO should obtain the transcript of the veteran's February 1999 RO hearing as mentioned in the April 1999 SSOC. 2. The veteran should be given an opportunity to supplement the record on appeal with any pertinent information that could support her claim. 3. The RO should ask the veteran to provide information regarding any evidence of treatment for psychiatric disability that has not already been made a part of the record. The RO should assist the veteran in obtaining such evidence following the procedures set forth in 38 C.F.R. § 3.159 (1999). 4. Because there is evidence of behavior changes during service which might indicate the occurrence of stressful experiences, the RO should obtain interpretation of such evidence by a clinician, specifically a VA neuropsychiatrist, as provided in M21-1, Part III, para. 5.14(c)(9). The VA neuropsychiatrist should refer to the claims file in determining whether the veteran's exhibited behavior changes were suggestive of someone who experienced personal assault trauma during service. As part of this process, the veteran should be examined. All indicated tests and studies, including psychological testing, should be performed. The examiner should be asked to comment on whether the veteran had experienced a dissociative disorder and whether she now experiences any psychiatric disability that can be linked to military service, particularly any stressor deemed corroborated by evidence of behavior changes, etc. If PTSD is not found, the examiner should explain such a finding in light of the July 1996 VA examination report showing a diagnosis of PTSD. The relationship of any other psychiatric diagnosis to military service or to PTSD should be described and any such relationship found should be reconciled with opinions set forth in the July 1996 VA examination report. The examiner should also specifically comment on and indicate agreement or disagreement with the July 1996 VA examination report to the effect that the veteran's psychiatric problems may have begun in childhood, but that such pre-existing pathology was exacerbated due to her experiences during service. The examination report should include complete rationale for all opinions expressed. 5. The RO should then re-adjudicate the claim. If the benefit sought is denied, a SSOC should be issued specifically including the provisions of M21-1, Part III, para. 5.14(c). After the appellant and her representative have been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required of the appellant until she receives further notice. The purpose of this remand is to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the remanded issue. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. 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 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. MARK F. HALSEY Member, Board of Veterans' Appeals