Citation Nr: 0018290 Decision Date: 07/13/00 Archive Date: 07/14/00 DOCKET NO. 98-07 091A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The appellant served on active duty from April 1966 to April 1968. The appellant subsequently was a member of the Louisiana Army National Guard from May 1979 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi which denied the appellant's claim for service connection for post-traumatic stress disorder (PTSD). FINDING OF FACT The appellant has a diagnosis of PTSD based on an unverified in-service stressor. CONCLUSION OF LAW The appellant's claim for service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). A person who submits a claim for veteran's benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a). When a veteran has presented a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a), the VA has a duty to assist the veteran in the development of his claim. A well-grounded service connection claim for PTSD has been submitted when there is "[1] medical evidence of a current [PTSD] disability; [2] lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a PTSD case is the equivalent of in-service incurrence or aggravation; and [3] medical evidence of a nexus between service and the current PTSD disability." Cohen v. Brown, 10 Vet. App. 128, 137 (1997). The determination of the sufficiency (but not the existence) of a stressor is subsumed in the PTSD diagnosis, and is exclusively a medical determination for mental-health professionals, who are "experts" and "presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis." Cohen, supra, at 140. In the instant case, the Board finds the appellant's claim for service connection for PTSD to be "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). In this regard, the appellant claims that he suffers from PTSD as a result of having been attacked by other soldiers while serving in Vietnam, and that an attacker attempted to force him to perform an unnatural sex act. See VA Form 1-646, Statement of Accredited Representation in Appealed Case, dated in March 2000. Review of the appellant's service medical records shows that he was seen at the 346th Medical Dispensary following complaints of being beaten up by several soldiers. The presence of various contusions was noted. Review of the record also shows that the appellant has asserted the existence of a second stressor in support of his claim for service connection for PTSD, namely, being assaulted by another soldier with a nail gun while serving with the Louisiana Army National Guard. See Written Brief Presentation, dated in May 2000. The Board notes that the appellant has been granted service connection for residuals of nail puncture wound of the back. In addition, several VA medical records on file, in the form of both outpatient records and examination reports, dated from 1998 to 2000, are shown to include several diagnoses of PTSD. Furthermore, a May 1998 letter from the Vet Center located in Biloxi, Mississippi is shown to contain an opinion to the effect that the appellant has PTSD as a result of trauma incurred during his period of service. Under these circumstances, the appellant's claim for service connection for PTSD is well grounded, thereby triggering the VA's duty to assist under 38 U.S.C.A. § 5107(a). ORDER The appellant's claim of entitlement to service connection for PTSD is well grounded. To this extent only, the appeal is granted. REMAND Although the appellant's PTSD claim is well grounded, the evidence is insufficient to warrant a grant of service connection. If, as in this case, it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In relation to non- combat stressors, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter 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 non-combat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); and Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The Board acknowledges that evidence corroborating the existence of a stressor need not be limited to that which is available in service department records. See Doran v. Brown, 6 Vet. App. 283, 288-291 (1994). The VA Adjudication Manual M21-1 (M21-1) provides that the required "credible supporting evidence" of a non- combat stressor "may be obtained from" service records or "other sources." M21-1, part VI, formerly 7.46. With regard to specific claims based upon personal assault, M21-1, part III, 5.14(c), 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 confidants, such as fellow service members, and records that indicate behavior changes that occurred at the time of the incident that may indicate the occurrence of an in-service stressor. A recent Court case, Patton v. West, 12 Vet. App. 272 (1999), has highlighted the importance of the RO following the more particularized requirements delineated in the M21-1 for personal-assault PTSD claims. It is not clear that the RO has achieved the level of development required by the Court's holding in Patton. Thus, the Board concludes that the RO should develop and adjudicate the appellant's PTSD claim under all applicable provisions contained in the M21-1. The Board also notes that there is mention in the evidence of record concerning other traumatic events in the appellant's life. These include the sexual abuse the appellant suffered for several years when he was a child and the difficulties he endured having parents who were alcoholics, as noted in the June 1998 VA psychological evaluation of the appellant. There is also mention in the July 1995 VA hospital discharge summary of the fact that the appellant's medical history included having been stabbed in the chest with associated exploratory surgery. There is no other documentation in the record of how or when the appellant was stabbed. The RO should attempt to obtain the records associated with the stabbing. In addition, while review of the record reveals that the RO has made several attempts to obtain the appellant's "201 File" [service personnel records] in an attempt to document the appellant's alleged inservice sexual assault, as of January 2000, the Board notes that this search has proved unsuccessful. The Board notes that such evidence is certainly relevant to the appellant's claim for service connection for PTSD. Therefore, the RO should again attempt to obtain these records. Further, there does not appear to have been any attempt made to verify the appellant's stressors with the United States Armed Services Center for Research of Unit Records (USASCRUR) (formerly the U.S. Army and Joint Services Environmental Support Group (ESG)) or other appropriate organization. The Board notes that the appellant submitted a written statement, in March 1996, in which he described the approximate date and the specific location of the alleged personal assault on him, as well as the names of his attackers and that the date and location of the alleged nail attack is also of record. The RO has not yet ascertained whether or not any personnel matching the names were stationed in the appellant's unit in Vietnam at that point in time. The appellant should be offered an opportunity to provide additional specific information that would permit such search. Lastly, it has been resolved in various cases, essentially, that although Social Security Administration (SSA) disability decisions are not controlling for VA purposes, they are pertinent to the adjudication of a claim for VA benefits, and that the VA has a duty to assist the veteran in gathering SSA records. Collier v. Derwinski, 1 Vet. App. 413 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Masors v. Derwinski, 2 Vet. App. 181 (1992); and Brown v. Derwinski, 2 Vet. App. 444 (1992). Review of the evidence of record reveals that the appellant was in receipt of SSA disability benefits between 1995 and 1997. In this case, all of the medical records utilized by the SSA in granting the appellant's disability claim should be obtained by the RO and associated with the claims file. In view of the account given by the appellant of the sexual/personal assaults that purportedly happened in service and of the events that followed, the Board will ask for the RO to attempt to develop the record further as will be explained below. Regardless of whether an in-service stressor is verified, the appellant should also be afforded a VA examination to determine if the PTSD reported in the claims file is linked to active duty in any way. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Accordingly, the case is REMANDED for the following: 1. The RO should obtain the appellant's Army personnel records from the Official Military Personnel File (OMPF) or from any other appropriate source. All requests, negative responses, and information obtained should be associated with the claims file. The appellant should also be notified of any negative results. 38 C.F.R. § 3.159. 2. The RO should obtain from the Social Security Administration copies of any medical records utilized in determining the grant of the appellant's of entitlement to disability benefits, as well as any Administrative Law Judge decision and associated List of Exhibits. The appellant's assistance in obtaining any pertinent records should be requested as indicated. 3. The RO should contact the appellant to determine the names, addresses, and dates of treatment of any additional physicians, hospitals or treatment centers (private, VA or military) who provided him with relevant treatment since service for any psychiatric problems and for the chest stab wound. After obtaining the appropriate signed authorization for release of information forms from the appellant if needed, the RO should contact each physician, hospital, or treatment center specified by the appellant at any point in the file to request specifically any and all medical or treatment records or reports relevant to the above mentioned claim, to the extent that they are not already of record. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims file. If private treatment is reported and those records are not obtained, the appellant and his representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159. 4. The RO should request from the appellant a comprehensive statement of potential alternative sources for supporting evidence regarding the alleged sexual/personal assaults during service. The RO inquiry should include possible sources listed in M21-1, part III, 5.14. The appellant should be advised that this information is vitally necessary to obtain supportive evidence of the stressful event(s) and that he must be as specific as possible because without such details an adequate search for verifying information cannot be conducted. In addition, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy to provide credible evidence of the claimed in-service stressor also should be requested. See Manual 21-1, Part III, Paragraph 5.14c(5). 5. The RO should review the claims file and prepare a summary of all the claimed stressors. If the information is sufficient to permit the USASCRUR to attempt to document the reported stressors, this summary and all associated documents should be sent to USASCRUR. They should be requested to provide any information that might corroborate the appellant's alleged stressors. If the case is not referred to USASCRUR, the RO should indicate in the record why the case was not referred. 6. Thereafter, the RO should list the verified stressors, if appropriate, and schedule the appellant for an examination, by a VA psychiatrist to determine the nature and extent of any psychiatric disorder present, and specifically to determine whether PTSD is present, and, if so, whether it is linked to the appellant's verified inservice stressor(s). The entire claims file must be made available to and reviewed by the examiner in connection with the examination. The examination report should include a detailed account of all psychiatric and/or psychological pathology found to be present. The examination report should reflect review of pertinent material in the claims file. The examiner should integrate the previous psychiatric and psychological findings and diagnoses with current findings to obtain a true picture of the nature of the appellant's psychiatric status. If there are different psychiatric disorders present, the examiner should reconcile the diagnoses and should specify which symptoms are associated with each of the disorders. The psychiatrist should conduct an examination with consideration of the criteria for PTSD. The RO must specify for the examiner the stressor or stressors that it has determined are established by the record, if any. If a diagnosis of PTSD is appropriate, the examiner should specify the credible "stressors" that caused the disorder and the evidence relied upon to establish the existence of the stressor(s). The examiner should also describe which stressor(s) the appellant re-experiences and how he re-experiences them. All necessary special studies or tests including psychological testing and evaluation are to be accomplished if deemed necessary. The examiner should also assign a Global Assessment of Functioning (GAF) Score. It is imperative that the psychiatrist also provide a definition of the GAF score for purposes of due process under Thurber v. Brown, 5 Vet. App. 119 (1991). If there are no stressors, or if PTSD is not found, that matter should also be specifically set forth. The examiner should offer opinions as to the etiology of any other documented psychiatric and/or psychological condition(s). In particular, the examiner should offer opinions, with degree of medical probability expressed, as to whether the etiology of the appellant's psychiatric or psychological pathology is attributable to any disease or incident suffered during his active service; any disease or incident suffered prior to service; any disease or incident suffered after service; or to a combination of such causes or to some other cause or causes. The examiner should express an opinion, with degree of medical probability expressed, as to whether or not the appellant's psychiatric pathology is related to his childhood experiences, his in-service experiences, his National Guard experiences, his post-service experiences, including being stabbed in the chest or intercurrent causes. The examiner should identify the information on which s/he based the opinion. The opinion should adequately summarize the relevant history and clinical findings, and provide detailed explanations as to all medical conclusions rendered. The opinion should also allocate the appellant's various symptoms and manifestations to the appropriate diagnostic entity. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon by the examiner. 7. The RO should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the medical examination report. If the report does not include all test reports, special studies or fully detailed descriptions of all pathology or adequate responses to the specific opinions requested, the report must be returned to the examiner for corrective action. 38 C.F.R. § 4.2. "If the [examination] report does not contain sufficient detail it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." Green v. Derwinski, 1. Vet. App. 121, 124 (1991). 8. The RO should advise the appellant that failure to report for the scheduled examinations may have adverse consequences as to his claim since the information requested on the examination addresses questions of causation, severity and symptomatology that are vital to the claim. 38 C.F.R. § 3.655. The appellant is also instructed that he 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). 9. Thereafter, the RO should then readjudicate the claim of entitlement to service connection for PTSD, in light of all pertinent evidence and all applicable laws, regulations and case law, to include the VA Adjudication Procedure Manual M21-1, Part III, paragraph 5.14c. That readjudication should also reflect application of all appropriate legal theories, including the provisions of 38 C.F.R. § 3.304 and the Patton case, supra. 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. If the claim remains denied, the appellant and his representative should be issued a supplemental statement of the case and be given the reasonable opportunity to respond thereto. The case should then be returned to the Board for further appellate review. The purpose of this REMAND is to further develop the evidence and afford the appellant due process of law. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate disposition of the issues on appeal. No action is required by the appellant until he receives further notice from the RO. M. HANNAN Acting Member, Board of Veterans' Appeals