Citation Nr: 0020235 Decision Date: 08/02/00 Archive Date: 08/09/00 DOCKET NO. 96-39 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from November 1977 to May 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. There is medical evidence that relates the veteran's claimed inservice stressor to a current diagnosis of PTSD. CONCLUSION OF LAW The claim for service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION A person claiming VA benefits must meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well grounded is plausible, meritorious on its own, or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). For purposes of determining whether a claim is well grounded, the Board presumes the truthfulness of the supporting evidence. Arms v. West, 12 Vet. App. 188, 193 (1999); Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). The quality and quantity of evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). If the veteran has not presented a well-grounded claim, his appeal on the pertinent issues must fail and there is no duty to assist him further in the development of the claim. 38 U.S.C.A. § 5107(a). See Epps v. Gober, 126 F.3d 1464 (1997), cert denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998).. The United States Court of Appeals for Veterans Claims (Court) has held that VA cannot assist a claimant in developing a claim that is not well grounded. Morton v. West, 12 Vet. App. 477 (1999). Generally, in order for a claim for service connection to be well-grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995); 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Id. A well-grounded claim need only be "plausible" or "capable of substantiation," and need not be conclusive but only possible. The burden of persuasion for establishing a well- grounded claim is unique, and uniquely low. The threshold for the standard is low, as a high threshold risks the elimination of potentially meritorious claims, which would undermine the entire veteran-friendly nature of the claim system. Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000). A claim for service connection for PTSD is well grounded where the veteran has "submitted medical evidence of a current disability; lay evidence (presumed to be credible for the purpose of determining whether the claim is well grounded) of an in-service stressor, which in a PTSD case is the equivalent of in-service incurrence or aggravation; and medical evidence of a nexus between service and the current PTSD disability." Cohen v. Brown, 10 Vet. App. 128, 136-37 (1997). The veteran claims to have PTSD as a result of inservice abuse by a commanding officer, to include on one occasion being struck three times with a pistol by the officer. As the medical evidence of record shows, three VA medical professionals have diagnosed PTSD related to claimed inservice noncombat stressors -- a December 1999 VA examiner, a treating VA psychiatrist who has followed the veteran for a period of years, and an attending physician who treated the veteran at a VA PTSD clinic in May 1999. Accordingly, Board finds that the claim for service connection for PTSD is well grounded, and further development is directed in the REMAND portion of this action. ORDER The claim for service connection for PTSD is well grounded. The benefits sought on appeal are granted to this extent only. REMAND As noted above, the Board has found the veteran's claim for service connection for PTSD to be well grounded based on the findings and diagnoses of three VA physicians. However, the medical opinions of record are too much in conflict with one another and are based on incomplete information or an incomplete review of the record. For example, there is evidence of ongoing alcohol abuse as recently as February 1999 and a diagnosis of schizophrenia in June 1999. Other recent treating and examining physicians do not appear to have fully considered these diagnoses. Also, the veteran's longitudinal history of alcohol abuse and its consequences, reflected in private and VA records of treatment dating back to 1993, do not appear to have received close attention. Moreover, a July 1999 VA examiner did not diagnose the veteran as having PTSD (the diagnosis was generalized anxiety disorder (primary) and depressive disorder) and did not relate the veteran's current psychiatric disorder to service. Additionally, there are notations and other indications of appointments with the veteran's treating VA psychiatrist from June 1999 forward, records of which are not associated with the claims file. In writings dated in August 1999, October 1999, and June 2000, the VA treating psychiatrist has brought into question the completeness of the record and has indicated that additional medical information would be forthcoming. The veteran asserts that he was diagnosed with PTSD that he attributes to a stressful event in service when he was physically assaulted by a commanding officer. Pertinent provisions of Manual M21-1 specially address the types of documentation that may be used to corroborate the occurrence of a stressor where the alleged stressor event is physical or sexual assault. See Cohen v. Brown, 1 Vet. App. 128 (1997); M21-1, Part VI, Change 65 (October 28, 1998) par. 11.38; M21- 1, Part III, Change 49 (February 1996) par. 5.14c. See also YR v. West, 11 Vet. App. 393, 397-399 (1998) (Credible evidence is not limited to service department records and can be obtained from any source). As the court also stated, certain provisions of Manual M21-1 are the equivalent of VA regulations, and the Secretary must comply with them. See Cohen v. Brown, 10 Vet. App. at 128. M21-1, Part III, Change 49 (February 1996) par. 5.14c. Finally, the veteran should be notified that a claim for service connection for PTSD based on non-combat stressors requires corroboration of the stressor other than his own statements or physicians' after-the-fact opinions that the stressors occurred. If the claimed stressor is not combat related, the veteran's lay testimony regarding his inservice stressor is insufficient, standing alone, to establish service connection and must be corroborated by credible evidence. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); Doran v. Brown, 6 Vet. App. 283, 289 (1994). The Court of Appeals for Veterans Claims has held that there is no requirement that such corroboration must be found in the service records. However, the credible supporting evidence cannot consist solely of after-the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). During the pendency of the veteran's appeal, VA amended 38 C.F.R. § 3.304(f) that deals with service connection claims for PTSD, to implement changes as set forth in Cohen v. Brown, 10 Vet. App. 128 (1997). See 64 Fed. Reg. 32807-32808 (1999) (effective March 7, 1997). The RO should be cognizant of any pertinent changes when readjudicating the veteran's claim. The VA has the duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims has held that the duty to assist the veteran includes obtaining medical records and medical examinations where indicated by the facts and circumstances of an individual case. Littke v. Derwinski, 1 Vet. App. 90 (1990). On the basis of the above and pursuant to 38 C.F.R. § 19.9, the Board determines that further development of the evidence is essential for a proper appellate decision and, therefore, remands the matter to the RO for the following action: 1. The RO should contact the veteran and request that he identify the names, addresses and approximate dates of treatment for all health care providers, private and VA, who may possess additional records pertinent to his claim. With any necessary authorization from the veteran, the RO should attempt to obtain copies of those treatment records that have not been obtained previously. The records sought must include any additional VA records of treatment by the veteran's treating psychiatrist who wrote letters regarding the veteran's claim in August 1999, October 1999, and June 2000. 2. The RO should consult M21-1, Part III, Change 49 (February 1996) par. 5.14c, "PTSD Claims Based on Personal Assault", and M21-1, Part VI, Change 65 (October 1998) par. 11.38(b)(2) "Evidence of Personal Assault" regarding the need for additional development to corroborate the appellant's claim. The RO should make all reasonable attempts to obtain other records that may be needed, to include any reports from the military police, shore patrol, provost marshal's office or other military law enforcement. It may be necessary to call the unit at the military installation where the records may be located. a) The RO should also consider development of alternative sources of information to include medical records from private physicians or caregivers who may have treated the appellant either immediately following the incident or sometime later; civilian police reports; reports from crisis intervention centers; lay statements from family members, roommates, comrades or clergy; or copies of personal diaries or journals. b) Regarding the development letter for PTSD claims based on personal assault, the RO should use M21-1, Part III, Change 55 (April 1996), Exhibit A.4, "Suggested Attachment To Letter To Veteran Requesting PTSD Information Concerning An In-Service Personal Assault" or an attachment developed locally. The veteran should be requested to provide more specific facts, if available, about the stressful events he claims to have experienced in service. He should be asked to provide dates, places, and detailed descriptions for each event, and the name and other identifying information concerning any individual involved in the incidents. c) Where the military record contains no documentation of the occurrence of a personal assault, alternative evidence might 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 are not limited to): visits to medical or counseling clinic or dispensary without a specific diagnosis or ailment; sudden request that the appellant's military occupational series or duty assignment be changed without other justification; lay statements showing increased use or abuse of leave without an apparent reason such as family obligations or family illness; changes in performance and performance evaluations; increased or decreased use of medications; evidence of substance abuse; obsessive behavior such as over eating or under eating; unexplained economic or social behavior changes; breakup of a primary relationship. 3. Upon completion of the above, 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 neuropsychiatric physician for an opinion as to whether the evidence provides evidence of a stressor to corroborate the veteran's claim of service connection for PTSD based upon a physical assault in service. Any opinion expressed should be accompanied by a written rationale. 4. The veteran should be scheduled for a VA psychiatric examination by a panel of two psychiatrists who have not previously treated or examined the veteran to determine the nature and etiology of his current psychiatric disorder. The examining physicians should render an opinion as to whether it is as likely as not (a 50 percent or more likelihood) that any psychiatric disorder is related to service. The physicians' attention is directed to the medical history reflected in the claims file, to include the veteran's service medical records; a history of alcohol abuse to include record of alcohol abuse dating back to 1993 and as recently as February 1999; a June 1999 diagnosis of schizophrenia; a diagnosis of generalized anxiety disorder (primary) and depressive disorder by a July 1999 VA examiner; and diagnoses of PTSD related noncombat inservice stressors by a December 1999 VA examiner, the veteran's VA treating psychiatrist over a number of years, and a treating psychiatrist in May 1999 at a VA PTSD clinic. All necessary tests and studies should be conducted. The extent possible, the examiners are requested to reconcile the veteran's conflicting psychiatric diagnoses. The examiners should provide reasons for all opinions and diagnoses. The claims folder and a copy of this remand should be made available to the examiner for review. The examiner should indicate whether the claims folder was reviewed. The veteran should be advised that failure to report for a scheduled VA examination without good cause shown might have adverse effects on his claim. See 38 C.F.R. §3.655 (1999). 6. Thereafter, the RO should review the claims file and ensure that all requested development actions have been conducted and completed in full and undertake any other indicated development. Then, the RO should readjudicate the veteran's claim for service connection for PTSD. If the benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case, and the veteran and his representative should be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board implies no conclusion, either legal or factual, as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. 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). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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. D. J. DRUCKER Acting Member, Board of Veterans' Appeals