Citation Nr: 0018337 Decision Date: 07/13/00 Archive Date: 07/14/00 DOCKET NO. 98-08 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The veteran served on active duty from January 1973 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the veteran's claim seeking entitlement to service connection for post-traumatic stress disorder (PTSD). FINDING OF FACT There is competent medical evidence of record establishing that the veteran may have PTSD that is related to his military service. CONCLUSION OF LAW The 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 To establish a well-grounded claim for service connection for PTSD, the record must include a medical diagnosis of PTSD (showing a current disability), lay evidence of an in-service stressor (showing service incurrence), and medical evidence of a nexus between the PTSD and the stressor (linking the current disability to service). Cohen v. Brown, 10 Vet. App. 128, 137 (1997). The veteran's lay statements concerning an in-service stressor are sufficient to show service incurrence as to well groundedness. In this case, the claims file contains at least four VA outpatient treatment reports, dated between October 1997 and January 1998, which, when read in context, appear to link PTSD to events during service. Under the circumstances, the Board finds that these reports are sufficient to render the claim well grounded. ORDER Having submitted evidence of a well-grounded claim of entitlement to service connection for PTSD, the claim is granted to this extent only and is subject to the following development. REMAND The veteran has indicated that he was stationed at Ft. Campbell for advanced infantry training. He reported that he was absent without leave (AWOL) (apparently for about 45 days) and was placed in the stockade after his father made him turn himself in. Upon his release from the stockade, he immediately went AWOL again, for about 20 days. He then turned himself in at Ft. Campbell, accompanied by his father. He was put in the stockade again. In his statements and testimony, the veteran indicated that in October or November of 1973 while on field maneuvers, he was sexually assaulted by another soldier while sleeping in a tent. He described the assault and reported that he was told by the party who assaulted him to remain silent about it. The veteran reported that, although he was ordered not to return to the base, he disobeyed orders and went to see the chaplain, identified as Lt. Col. William Cox, whom he told about the alleged assault. He stated that charges brought against the veteran were subsequently dropped. It was stated that charges were brought against the perpetrator, who reportedly did not deny them. The veteran was discharged very shortly thereafter. The veteran's service records include his discharge (DD Form 214) which shows time lost from July 13, 1973 to August 26, 1973, and from September 11, 1973 to October 4, 1973. He was discharged under Chapter 13, AR 635-200 SPN 264. A letter from the U.S. Army Reserve Personnel Center, dated in July 1991, states that Chapter 13, AR 635-200 SPN 264 means enlisted personnel unsuitability, character and behavior disorders. The veteran's personnel file (DA Form 20) indicates that he was assigned to the 2d Unit, 1st Bn, USARB, Ft. Riley, Kansas, from October 5, 1973 until his separation from service. A "correctional progress note," dated in October 1973, and a "discharge of personnel for unsuitability" memo, dated in November 1973, indicate that the veteran was recommended for discharge due to apathy and defective attitude. An accompanying "resume" notes that between September 20, 1973 and October 5, 1973, the veteran was evaluated three times, and that he had stated that he did not want to RTD (return to duty) on each occasion. He received a Chaplain's evaluation on October 11, 1973 (a May 1991 letter from the National Personnel Records Center indicates that the "chaplain's evaluation" (RB Form 7) is not on file). On October 17, 1973, he refused an order from his team sergeant and unit commander to go to training. The Board notes that a recent decision by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999)(hereinafter, "the Court"), Patton v. West, 12 Vet. App. 272 (1999), clearly alters the landscape in the adjudication of claims of service connection for PTSD based upon personal assault. In Patton, the Court emphasized that statements contained in prior decisions indicating that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'" of a claimed stressor and that "[a]n opinion by a mental health professional based on a post-service examination of the veteran cannot be used to establish the occurrence of the stressor," were made in the context of discussing PTSD diagnoses other than those arising from personal assault. Id. at 280; see also Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). 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." Id. (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. See YR v. West, 11 Vet. App. 393 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997). 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. Subparagraph (9) provides that "[r]ating 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 which documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." The Court in Patton went on to note that the manual improperly appeared to require that the existence of the in- service stressor be shown by a preponderance of evidence. Any such requirement would be inconsistent with the so called equipoise doctrine set forth in 38 U.S.C.A. § 5107(b) where the benefit of the doubt is given to the claimant unless the evidence preponderates against the claim. Under the circumstances, the Board has determined that a remand is required for the veteran to be given the opportunity to submit a full and detailed list of: 1) any evidence of behavioral changes which may support his claim; and 2) a list of fellow soldiers and/or civilians who may be able to provide lay statements as to either the occurrence of the claimed stressor, or changes in the veteran's observed behavior (the Board stresses that under M21-1, Part VI, 11.38b(2) the changes in his observed behavior must have been witnessed "at the time of the claimed stressors" (i.e., reasonably close in time to the claimed stressors). The RO should also attempt to obtain the veteran's disciplinary records. In addition, review of the veteran's claim shows that he reported that he had received treatment at the Wishard Hospital for a suicide attempt in 1977. These records are not currently associated with the claims file. On remand, the RO should attempt to obtain these records. In addition, the veteran has reported that he is receiving benefits from the Social Security Administration (SSA), at least in part, for PTSD. On remand the RO should attempt to obtain the SSA's records. Finally, the Board notes that although M21-1 provides that evidence of changes of behavior that occurred at the time of the incident may indicate the occurrence of an in-service stressor, such evidence may need interpretation by a clinician. See M21-1, Part VI, 11.38b(2). In addition, in this case the medical evidence shows a reported history of third degree burns related to a suicide attempt in 1977, and the examiner should comment on this, as well as the presence or absence of other traumatic events and their relevance to the current symptoms. See M21-1, Part VI, 11.38e. Therefore, following the requested development, an opinion should be obtained from a VA psychiatrist, as outlined below. Based on the foregoing, additional development is necessary and this case is REMANDED to the RO for the following action: 1. The RO should contact the veteran and request that he identify independently verifiable evidence of behavioral changes which occurred at the time of the alleged stressor, and to provide a list of any fellow soldiers and/or civilians, and their addresses, who may be able to provide lay statements as to the occurrence of the claimed stressor, and/or changes which they observed in his behavior at the time of the claimed stressor or shortly thereafter. 2. The veteran should be requested to provide a list of all health care providers who treated him for psychiatric symptoms prior to 1991, to include all treatment for suicide attempts. After obtaining any necessary authorizations, the RO should then attempt to obtain such treatment records and associate them with the claims file, to include records from Wishard Hospital. 3. The RO should obtain copies of the veteran's service personnel records pertaining to any disciplinary action taken in connection with being absent without leave in 1973, and/or any reduction in rank. All available sources should be employed in an effort to obtain all personnel records of the veteran. 4. The RO should contact the Social Security Administration and ascertain whether the veteran is currently receiving disability benefits from that agency. Copies of any decisions awarding or denying such benefits should be obtained and associated with the claims folder. Supporting medical documentation utilized in rendering any decision relating to such benefits should also be obtained for inclusion in the veteran's claims folder. 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. The RO should schedule the veteran for a VA psychiatric examination to determine whether the veteran has PTSD under the criteria as set forth in DSM- IV. The veteran should be informed of the potential consequences of his failure to report for the examination. If the veteran is found to have PTSD, the examiner should report whether it is at least as likely as not that the veteran's PTSD is a result of his service. The examiner should comment on the presence or absence of other traumatic events and their relevance to the current symptoms, to include a suicide attempt resulting in third degree burns in 1977. The RO should provide the examiner with a summary of any verified stressor(s), as well as the all evidence pertaining to changes in behavior at the time of the claimed stressor(s). The claims file must be provided to the examiner in connection with the examination. 7. After undertaking any additional development deemed appropriate, the RO should review the record and ensure that all of the directives of this remand have been carried out in full. If not, corrective action must be taken. 38 C.F.R. § 4.2 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). Then the RO should readjudicate the issue of service connection for PTSD considering all of the evidence of record. The RO's decision should include a discussion of the probative value of any inservice history of disciplinary actions, as well as any evidence of a change of behavior at the time of the incident which may corroborate the claimed stressor(s), as contemplated in M21-1. If the benefit sought is not granted, the veteran and his representative should be furnished a supplemental statement of the case, and be afforded the applicable opportunity to respond before the record 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 is free to submit any additional evidence he desires to have considered in connection with his current appeal. No action is required of the veteran unless or until he is notified. NADINE W. BENJAMIN Acting 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).