Citation Nr: 0016585 Decision Date: 06/22/00 Archive Date: 06/28/00 DOCKET NO. 99-04 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Arizona Veterans Service Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel INTRODUCTION The veteran had active service from May 1968 to July 1968. Initially, the Board of Veterans' Appeals (Board) notes that in a decision in June 1996, the Board found that new and material evidence submitted since the Board's previous denial of the claim in March 1990 was not sufficient to reopen the claim. In the June 1996 decision, the Board held that the evidence remained insufficient to establish a verified "stressor," as required under 38 C.F.R. § 3.304(f) (1999). As will be shown more fully below, while a preliminary review of the additional evidence submitted since the June 1996 Board decision reveals that the claim continues to be deficient in this regard, the Board finds that changes in VA manual provisions since the Board's previous decision warrant remand of this matter based on due process considerations. REMAND The Board first notes that in addition to stressors relating to the veteran's alleged exposure to the death of a fellow service member during basic training, in a hearing before the Board in February 2000, the veteran has additionally described stressors arising out of a number of personal assaults allegedly perpetrated by his drill instructor and others during his period of active service. Some of these assaults allegedly involved the drill instructor using a screwdriver in a threatening manner (transcript (T.) at p. 7), and the placement of a bucket on the veteran's head and the drill instructor continually striking the bucket with a screwdriver (T. at p. 15). Other forms of assault were also described. The record further reflects previous statements from the veteran wherein he recalled discussing these events during service with a chaplain. As was noted by the United States Court of Appeals for Veterans Claims (previously known as the United States Court of Veterans Appeals prior to March 1, 1999, hereafter "the Court") in Patton v. West, 12 Vet. App. 272 (1999), special evidentiary procedures for PTSD claims based on personal assault were established in February 1996 in Department of Veterans Affairs (VA) Adjudication Procedure Manual M21-1 (Manual M21-1), Part III, para. 5.14c (Feb. 20, 1996), and are a substantially expanded version of former Manual 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); Anglin v. West, 11 Vet. App. 361, 368 (1998). "This Court has previously held that the Manual M21-1 provisions in paragraph 7.46 dealing with PTSD are substantive rules that are "the equivalent of [VA] [r]egulations'." Cohen (Douglas) v. Brown, 10 Vet. App. 128, 139 (1997) (quoting Hayes v. Brown, 6 Vet. App. 66, 67 (1993)); see also Smith (Bernard) v. Brown, 10 Vet. App. 44, 48 (1996); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); Fugere v. Derwinski, 1 Vet. App. 103, 109 (1990), aff'd, 972 F.2d 331 (Fed.Cir. 1992). Moreover, it has been held that VA is required to follow the new provisions in paragraph 5.14c. YR, supra. Thus, while the Board may not be required to reopen the claim for consideration of the M-21 provisions found in paragraph 5.14c, due process requires that the veteran be afforded notice of the relevant provisions of paragraph 5.14c. In this regard, the Board observes that there are still additional avenues open for obtaining verification of the alleged assaults in service, and these avenues must be investigated. 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, para. 11.38. Specific to claims based upon personal assault, M21- 1, Part III, para. 5.14c provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred. Included among the sources are statements from fellow service members, chaplain, and clergy. This section of M21-1 also contains an exhibit entitled "Suggested Development Letter for PTSD Claims Based on Personal Trauma." The record in this case shows that the regional office (RO) informed the veteran in a December 1998 statement of the case (SOC) that the additional evidence of record did not qualify as credible supporting evidence of the occurrence of an in- service stressor as required by 38 C.F.R. § 3.304(f). However, that SOC did not mention the types of collateral evidence now listed in the revised version of M21-1, Part III, para. 5.14c. Thus, the Board finds that considerations of due process require that the appellant and his representative be properly informed of all of the types of collateral evidence now mentioned in M21-1, Part III, para. 5.14c. It should also be noted that if a claimant's application for benefits under the laws administered by the Secretary is incomplete, the Secretary is obligated to notify the veteran of the evidence necessary to complete the application. 38 U.S.C.A. § 5103 (West 1991). Moreover, legal precedent has also established new standards for the review of PTSD claims and applications to reopen based on the submission of new and material evidence. First, Cohen (Douglas) v. Brown, supra, altered the analysis in connection with claims for service connection for PTSD, by pointing out that VA has adopted the fourth addition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV), and that the criteria have changed from an objective ("would evoke in almost anyone") standard in assessing whether a stressor is sufficient to trigger PTSD, to a subjective standard. In addition, it was determined in Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998) that the Court in Colvin v. Derwinski, 1 Vet. App. 171 (1991) had "overstepped its judicial authority" by adopting a social security case law definition of "new and material evidence," rather than deferring to the "reasonable interpretation of an ambiguous statutory term established by [VA] regulation." Thus, under Hodge, in order to reopen a claim, the additional evidence must bear directly and substantially on the specific matter under consideration, must be neither cumulative nor redundant, and by itself or in combination with other evidence, must be so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999). Consequently, following the additional development noted above, the RO should thereafter readjudicate this claim consistent with Cohen and Hodge as noted above. Accordingly, to ensure full compliance with due process requirements, the case is remanded to the RO for the following development: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should advise the appellant of the potential alternative or collateral sources listed in M21-1, Part III, para. 5.14c(5)-(8), for supporting evidence regarding the assaults he alleges occurred in service. The use of the exhibit in M21-1 entitled "Suggested Development Letter for PTSD Claims Based on Personal Trauma" is recommended. The veteran and his representative are advised that this information is vitally necessary to obtain supportive evidence of the alleged event and that he must be as specific as possible because without such details an adequate search for supporting information cannot be conducted. 3. Thereafter, the RO should take appropriate action to request any supporting evidence from alternative sources identified by the veteran. The Board again must emphasize that the ability of the VA to assist in this matter is directly dependent upon the actions of the claimant in providing evidence or in identifying specifically where such alternative or collateral evidence may be obtained. 4. After the completion of any development deemed appropriate in addition to that requested above, the RO should readjudicate the issue of whether new and material evidence has been submitted to reopen his claim for service connection for PTSD, including consideration of Cohen, supra, and Hodge supra. 5. Thereafter, the RO should again review the record. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case, and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome as to this issue. The appellant need take no action until otherwise notified. 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, Veterans' Benefits Administration (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. Gary L. Gick 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).