Citation Nr: 0020491 Decision Date: 08/04/00 Archive Date: 08/09/00 DOCKET NO. 95-28 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a thyroid disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The veteran served on active military duty from September 1987 to February 1988 and from November 1990 to June 1991. This appeal arises from an October 1994 rating action of the Department of Veterans Affairs (VA) Regional Office (RO), in Montgomery, Alabama. Also by the October 1994 rating action, the RO denied service connection for a stomach disorder, defined as peptic ulcer disease. The RO notified the veteran of this determination in the same month, but the veteran did not appeal the decision. Thereafter, in a statement received at the RO in August 1999, the veteran appeared to raise a claim for service connection for peptic ulcer disease. The issue of whether new and material evidence has been received sufficient to reopen a claim for service connection for peptic ulcer disease is not inextricably intertwined with the current appeal and is, therefore, referred to the RO for appropriate action. FINDING OF FACT The veteran has a diagnosis of PTSD related to claimed stressors during her active military service. 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 FINDING AND CONCLUSION Service connection may be granted for a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). The first step in this analysis is to determine whether the veteran has presented a well-grounded claim. In this regard, the veteran bears the burden of submitting sufficient evidence to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet.App. 69, 73 (1995). Simply stated, a well-grounded claim must be plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Where the determinative issue involves medical etiology or a medical diagnosis, competent medical evidence that a claim is "plausible" or "possible" is required for the claim to be well grounded. See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Heuer v. Brown, 7 Vet.App. 379, 384 (1995); Grottveit v. Brown, 5 Vet.App. 91 (1993). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Epps, supra, and Caluza v. Brown, 7 Vet.App. 498 (1995). See also Heuer, supra; Grottveit, supra; and Savage v. Gober, 10 Vet.App. 488, 497 (1997). In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in the development of facts pertinent to the claim, and the claim must fail. See Epps, supra. A well-grounded claim for service connection for PTSD in particular 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) (citations omitted). See also 38 C.F.R. § 3.304(f) (1999). Throughout the appeal in the present case, the veteran has described various in-service stressors related to her active duty in Southwest Asia, including having snipers shooting from rooftops at her plane when it landed in Bahrain; the heart attack and subsequent death of her best friend whom she felt she had "talked into" volunteering for military service; observing wounded or dying soldiers and prisoners of war (POWs) at the 410th Evacuation Field Hospital; observing malnourished Southwest Asian women and children; and being fearful of missile attacks. See August 1999 hearing transcript (T.) at 3-9. Additionally, the veteran has claimed that, during her Persian Gulf service, she was subjected to sexual abuse and harassment by her platoon sergeant and that, as a result of this sexual coercion, she incurred a sexually transmitted disease. See, e.g., T. at 2-3, 5-6. At post-service psychiatric examinations, the veteran repeatedly described these in-service stressors. The various examiners who evaluated the veteran and considered her reported in-service stressors diagnosed PTSD. The most recent psychiatric evaluation was completed during a one-week VA hospitalization in September 1999. Significantly, the discharge summary report from this hospitalization includes an Axis I diagnosis of PTSD related to sexual abuse during Desert Storm with current manifestations of depression and psychotic ideation. As this medical record illustrates, the veteran's reports of having been exposed to sexual abuse and harassment by her platoon sergeant during her Persian Gulf service have resulted in a diagnosis of PTSD. The veteran's service personnel records indicate that she served on active military duty in Southwest Asia from January 1991 to May 1991 and that she received the Southwest Asia Service Medal with 3 Bronze Service Stars as well as the Kuwait Liberation Medal. Private post-service medical records dated in March 1994 reflect treatment for human papilloma virus. Additionally, in a May 1997 statement, the veteran's mother explained that the veteran had said that she had tried to avoid her platoon sergeant by requesting office duty with other military personnel and that she had told him that she was going to report him. The Board of Veterans' Appeals (Board) acknowledges that, at the August 1999 personal hearing, the veteran testified that she did not file a report concerning her sexual abuse and harassment claim with the military police during service (and only, after therapy, submitted a report to the "CID" who informed her that, because her former sergeant was no longer in the Army, no disciplinary action could be taken against him). T. at 3. However, an August 1999 letter from the United States Army Criminal Investigation Command notes that the organization has "information pertaining to a Memorandum of Transmittal (MOT) pertaining to you[r] reference [of] a rape while stationed in the Persian Gulf from the Aberdeen Proving Ground (APG), Aberdeen, Maryland." These documents provide evidence which satisfies the necessary regulatory requirements for a finding of a well-grounded claim for service connection for PTSD. See Cohen v. Brown, 10 Vet.App. 128, 137 (1997) (citations omitted). See also 38 C.F.R. § 3.304(f) (1999). ORDER To the extent that the claim for service connection for PTSD is well grounded, the appeal is granted. REMAND PTSD The VA has a duty to assist veterans who have submitted a well-grounded claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a); Epps v. Gober, 126 F.3d 1464, 1468-1469 (Fed. Cir. 1997). This duty to assist includes the duty to develop facts when the record before the Board is inadequate. EF v. Derwinski, 1 Vet.App. 324 (1991); Littke v. Derwinski, 1 Vet.App. 90 (1990). The development of facts includes an obligation to obtain medical records, especially those within the control of the federal government. Murphy v. Derwinski, 1 Vet.App. 78 (1990). This may also include a "thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet.App. 121, 124 (1991). A complete and thorough review of the claims folder in the present case indicates that the RO has not adequately assisted the veteran in the development of her claimed in-service stressors. Specifically, with regard to the veteran's contentions that she was subjected to sexual abuse and harassment by her platoon sergeant during her Persian Gulf service, the Board notes that, 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. VA Adjudication Procedure Manual M21-1 (M21-1), Part III, § 5.14(c)(2). See also Manual 21-1, Part III, § 5.14(c)(5) (noting that many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities). Consequently, development to alternative sources for information is critical. M21-1, Part III, paragraphs 5.14(c)(2) & (5). Alternative sources that may provide credible evidence of such an in-service stressor include medical records from private (civilian) physicians or caregivers who may have treated the veteran either immediately following the incident or sometime later; civilian police reports; reports from crisis intervention centers such as rape crisis centers or centers for domestic abuse; testimonial statements from confidants such as family members, roommates, fellow service members, or clergy; and copies of personal diaries or journals. M21-1, Part III, paragraph 5.14(c)(5). Additionally, behavioral 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 a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; lay statements indicating increased use or abuse of leave without an apparent reason such as family obligations or family illness; changes in performance and performance evaluations; lay statements describing episodes of depression, panic attacks, or anxiety but no identifiable reasons for the episodes; increased or decreased use of prescription medications; increased use of over-the-counter medications; evidence of substance abuse such as alcohol or drugs; increased disregard for military or civilian authority; obsessive behavior such as overeating or undereating; pregnancy tests around the time of the incident; increased interest in tests for HIV or sexually transmitted diseases; unexplained economic or social behavior changes; treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; and breakup of a primary relationship. M21-1, Part III, paragraph 5.14(c)(8). See also, M21-1, Part VI, paragraph 11.38(b)(2). In the present case, the RO has not attempted to obtain evidence of the veteran's reported in-service sexual abuse and harassment from alternative sources. A remand is necessary, therefore, to accord the RO an opportunity to assist the veteran in the development of facts pertinent to her claim. See YR v. West, 11 Vet.App. 393, 398 (1998) (in which the United States Court Of Appeals For Veterans Claims (Court) explained that the absence of corroboration in the service records of a reported sexual assault does not relieve VA of its obligation to assess the credibility and probative value of the other evidence). Following attempts to obtain corroborating evidence from alternative sources, the veteran should be accorded a relevant VA examination. See M21-1, Part III, paragraph 5.14(c)(9) and Part VI, paragraph 11.38(b)(2) (which stipulate that, in personal assault claims, secondary evidence may need interpretation by a clinician, especially if it involves behavior changes, and that evidence which documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician). Furthermore, as the Board has discussed in the previous portion of this decision, the veteran has described other in-service stressors, in addition to her claims of in-service sexual abuse and harassment. With regard to the veteran's claim that she observed wounded and dying persons in a POW medical tent when she had sought treatment herself, the Board notes that, in a July 1999 letter, the Department of Defense Office of the Special Assistant For Gulf War Illnesses informed her that the office was able to confirm the presence of at least two enemy POWs at the 410th Medical Evacuation Hospital during the same time that she had been admitted at the medical facility. According to this letter, over 100 POWs were treated at that facility and that "it is very likely other prisoners were treated at the facility, possibly at the same time as you." Significantly, further review of the claims folder indicates that the RO has failed to attempt to verify the veteran's additional in-service stressors. In particular, the agency does not appear to have attempted to contact the United States Armed Services Center for Research of Unit Records (USASCRUR) for verification of these additional stressors. Importantly, the nature of these additional incidents reported by the veteran, including being subjected to enemy sniper fire and observing wounded and dying POWs, appear potentially capable of verification through operational reports. In view of these circumstances, the Board finds that an attempt to verify the veteran's reported stressors should be made in this well-grounded claim. Also, at the August 1999 personal hearing, the veteran testified that she is receiving treatment from Dr. Dan at the Tuscaloosa VA Hospital and that she had previously been to the Memphis VA Hospital. T. at 7. While the claims folder contains some records of treatment that the veteran received from a Dr. Ban at the Tuscaloosa VA Medical Center (VAMC) and at the Memphis VAMC, it is unclear whether all such reports have been obtained. VA is deemed to have constructive knowledge of any documents "within the Secretary's control," and any such documents relevant to the issue under consideration must be included in the record on appeal. See Bell v. Derwinski, 2 Vet.App. 611, 613 (1992) (per curiam); Simington v. Brown, 9 Vet.App. 334 (1996) (per curiam). On remand, therefore, an attempt should be made to obtain records of any relevant psychiatric treatment that the veteran may have recently received from Dr. Dan, or Dr. Ban, at the Tuscaloosa VAMC and that she had previously been given at the Memphis VAMC. A Thyroid Disorder By the October 1994 rating action, the RO denied the issue of entitlement to service connection for a thyroid disorder, defined as hyperthyroidism. The agency notified the veteran of this denial in a letter dated in the same month. Thereafter, in the substantive appeal to the claim for service connection for PTSD, which was received at the RO in September 1995, the veteran expressed her disagreement with the denial of service connection for a thyroid disability. Significantly, however, a complete and thorough review of the claims folder reveals that the RO has not furnished the veteran with a statement of the case concerning this claim. Where a notice of disagreement has been submitted, the veteran is entitled to a statement of the case. 38 C.F.R. § 19.26 (1999). The failure to issue a statement of the case is a procedural defect requiring a remand. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995). Accordingly, the veteran's claim is REMANDED to the RO for completion of the following actions: 1. The veteran should be given an opportunity to supplement the record on appeal. Specifically, she should be asked about records of any psychiatric treatment received at the VAMC in Memphis, Tennessee and from Dr. Dan, or Dr. Ban, at the Tuscaloosa VAMC in recent years. The RO should assist the veteran in accordance with 38 C.F.R. § 3.159 (1999). 2(a). In addition, the RO should inform the veteran of the opportunity to use alternative sources to provide credible evidence of her reported in-service sexual abuse and harassment. Specifically, the RO should ask the veteran to provide any information regarding the existence of such alternative evidence, including medical records from private (civilian) physicians or caregivers who may have treated her either immediately following the incident or sometime later; civilian police reports; reports from crisis intervention centers such as rape crisis centers or centers for domestic abuse; testimonial statements from confidants such as family members, roommates, fellow service members, or clergy; and copies of personal diaries or journals. See M21-1, Part III, paragraph 5.14(c)(5). 2(b). In addition, the veteran should be asked to provide information regarding evidence of behavioral changes that occurred at the time of her reported sexual abuse and harassment. Examples of behavior changes that might indicate this reported stressor are, but are not limited to, visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; sudden requests that her military occupational series or duty assignment be changed without other justification; lay statements indicating increased use or abuse of leave without an apparent reason such as family obligations or family illness; changes in performance and performance evaluations; lay statements describing episodes of depression, panic attacks, or anxiety but no identifiable reasons for the episodes; increased or decreased use of prescription medications; increased use of over-the-counter medications; evidence of substance abuse such as alcohol or drugs; increased disregard for military or civilian authority; obsessive behavior such as overeating or undereating; pregnancy tests around the time of the incident; increased interest in tests for HIV or sexually transmitted diseases; unexplained economic or social behavior changes; treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; and breakup of a primary relationship. See M21-1, Part III, paragraph 5.14(c)(8) and M21-1, Part VI, paragraph 11.38(b)(2). 2(c). The RO should attempt to obtain copies of records of any information provided by the veteran pursuant to paragraphs 2(a) and 2(b) of this Remand. The RO should annotate, in the claims folder, all attempts to procure these alternative sources of evidence. In addition, all available documents should be associated with the claims folder. 3. The RO should also forward copies of the transcript of the August 1999 hearing, the veteran's written statement dated February 16, 2000, and her statement which was received at the RO on August 4, 1999, together with any portions of her service record which are associated with the claims folder, and a copy of this REMAND, to the USASCRUR and attempt to verify all of her claimed stressors related to her Gulf War service (in addition to her reported sexual abuse and harassment). The USASCRUR's review is requested to include a search for any situation or operational reports pertaining to any incidents or operations described by the veteran, including being subjected to enemy sniper fire and observing wounded and dying persons in a POW medical tent. Any information obtained should be associated with the claims folder. 4(a). Thereafter, a VA psychiatric examination should be performed to determine the nature, extent, and etiology of any psychiatric disorder that the veteran may have, to include PTSD. The claims folder and a copy of this remand should be made available to the examiner prior to the examination. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. 4(b). With regard to the veteran's reported sexual abuse and harassment charges, the examiner should be asked to express an opinion as to whether any secondary evidence previously included in the claims folder or received pursuant to paragraph 2 of this Remand, particularly if it involves behavior changes, represents sufficient evidence of sexual abuse or sexual harassment to have resulted in a diagnosed psychiatric disorder, including PTSD. See M21-1, Part III, paragraph 5.14(c)(9) and Part VI, paragraph 11.38(b)(2). With regard to the veteran's nonsexual in-service stressors, the RO should inform the examiner that only those stressors which have been verified by the RO (pursuant to paragraph 3 of this Remand) may be used as a basis for a diagnosis of PTSD. If PTSD is diagnosed, the examiner should specify which stressor(s) was(were) used as the basis for the diagnosis. A complete rationale for any opinion expressed must be provided. 5. After the requested development has been completed to the extent possible, the RO should again review the record and readjudicate the issue of entitlement to service connection for PTSD. Thereafter, if the benefit sought on appeal remains denied, the veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 6. With regard to the issue of entitlement to service connection for a thyroid disorder, the RO should undertake any additional development deemed necessary. If the claim remains denied and the veteran has not withdrawn her notice of disagreement, the RO should furnish the veteran and her representative with a statement of the case regarding this claim. 38 C.F.R. § 19.26 (1999). If and only if the veteran thereafter submits a timely substantive appeal on the issue of entitlement to service connection for a thyroid disorder, the RO should then prepare the claim for return to the Board for further appellate review. Thereafter, the appeal (if in order) should be returned to the Board for appellate review. The purpose of this REMAND is to provide fair process and to complete additional evidentiary development. The Board does not intimate any opinion at this time as to the ultimate outcome of the veteran's claim for service connection for PTSD (either favorable or unfavorable), apart from its determination that the claim is well grounded. No action is required of the veteran unless she is notified by the RO. However, the veteran does have the right to submit additional evidence and argument on the matters that 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 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. M. C. GRAHAM Acting Member, Board of Veterans' Appeals