Citation Nr: 0020844 Decision Date: 08/09/00 Archive Date: 08/17/00 DOCKET NO. 92-02 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at law ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The appellant had active duty for training from December 1976 to July 1977. This appeal arises from rating decisions of the Detroit, Michigan, regional office (RO). In June 1990, the RO denied service connection for an acquired psychiatric disability. In May 1992, the Board of Veterans' Appeals (Board) remanded the case for further development. In December 1993, the RO denied the claim. The issue of entitlement to service connection for post-traumatic stress disorder (PTSD) was subsequently raised, and in August 1994 the Board remanded the claims for an acquired psychiatric disorder and PTSD for additional development. The RO affirmed its denial of the claims in July 1998. In May 1999 the Board denied his claims. The appellant then appealed the issues of entitlement to service connection for an acquired psychiatric disorder, and PTSD, to the U.S. Court of Appeals for Veterans Claims (Court). While his case was pending at the Court, his representative and VA's Office of General Counsel filed a joint motion requesting that the Court vacate the Board's decision and remand the appellant's PTSD claim for further development and readjudication. In February 2000, the Court issued an Order vacating the May 1999 Board decision. REMAND The Board initially notes that in its May 1999 decision, it determined that the appellant's claims were well-grounded. However, only a person who has achieved the status of a veteran or claimant is entitled to the VA's assistance in the development of the facts pertinent to the claim, the benefit of the doubt, and the determination as to whether the claim is well-grounded. See Laruan v. West, 11 Vet. App. 80, 85 (1998); see also Epps v. Gober, 126 F.3d 1464, 1468-69 (1997) (only a person who has submitted a well-grounded claim can be determined to be a claimant for the purpose of invoking the duty to assist provisions of 38 U.S.C.A. § 5107(a)). In this case, the appellant has approximately seven and one- half months of active duty for training. He is not a "veteran," for VA benefits purposes, and the Board's finding that the claims were well-grounded was erroneous. In addition, the Board notes that since the appellant is not considered a veteran for purposes of these claims, the aforementioned procedural advantages and evidentiary benefits are not for application in this case, and he must prove his claim by a preponderance of the evidence. See Laruan, 11 Vet. App. at 86. With regard to the claim for PTSD, the appellant asserts that he was raped by homosexuals at Camp Pendleton on about a daily basis. He has not otherwise provided names, dates, or other useful identifying information. In a letter, dated in September 1994, Headquarters, U.S. Marine Corps, determined that the appellant had not provided sufficient information to conduct any meaningful research. The joint motion indicated, in part, that the Board "did not discuss whether any attempts to conduct research complied with the VA Adjudication Procedure Manual M21-1 (Manual M21- 1) provisions regarding development of claims based upon personal assault." Citing M21-1, Part III, paragraph 5.14c. In this regard, the provisions of VA Adjudication Procedure Manual M21-1 (Manual M21-1) provide that for claims based on personal assault, there are no restrictions on the type of evidence which may be considered. See Manual M21-1, Part III, 5.14(c) and Part VI, 7.46(c) (February 20, 1996). In addition, VA has undertaken a special obligation to assist a claimant in producing corroborating evidence of an inservice stressor in personal assault cases; such provisions are regulatory and must be applied in all cases involving allegations of inservice personal assault. See Patton v. West , 12 Vet. App. 272 (1999); M21-1, Part VI, 11.38(b)(2) (October 28, 1998). Accordingly, given the language in the joint motion, a remand is required for the RO to advise the appellant of general evidentiary requirements, that the claimed assault(s) must be verified, and to inform him as to the types of evidence which may be probative of his claim, as indicated in the aforementioned provisions of M21-1 and Patton. Therefore, the appellant should be given the opportunity to submit a full and detailed list of: 1) any evidence of behavioral changes which may support his claim, to include any pertinent records from his reserve unit; and 2) a list of fellow Marines and/or civilians who may be able to provide lay statements as to either the occurrence of the claimed stressor, or changes in the appellant'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). Therefore, this case is REMANDED for the following action: 1. The RO should contact the appellant and request that he identify independently verifiable evidence of behavioral changes which occurred at the time of the alleged stressor(s), to include any pertinent records from his reserve unit (which he should identify by name, address and event, together with appropriate dates); and to provide a list of any fellow Marines and/or civilians, and their addresses, who may be able to provide lay statements as to the occurrence of the claimed stressor(s), and/or changes which they observed in his behavior at the time of the claimed stressor. 2. 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 appellant's alleged stressors. 3. The RO should contact the appellants Reserve unit to obtain any personnel and medical information it has concerning the appellant's condition and status in his unit after July 1977. 4. After undertaking any additional development deemed appropriate, the RO should review the record and adjudicate the issues of service connection for an acquired psychiatric disorder, and PTSD, on a de novo basis. The RO's decision should include a discussion of the probative value of any evidence of a change of behavior at the time of the incident(s) during ACDUTRA or shortly thereafter which may corroborate the claimed stressor(s), as contemplated in M21-1. 5. If the RO should determine that there is sufficient evidence that an alleged assault or rape did occur during ACTUDRA, a psychiatric examination is to be conducted by a board of two specialists to determine whether the appellant suffers from PTSD based on the indicated stressor (s) a part from any other psychiatric disease he may have or whether he has any other psychiatric disease that may not be dissociated from his PTSD. The report is to be in detail and provide a rationale for all opinions. If the benefit sought is not granted, the appellant 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 appellant is free to submit any additional evidence he desires to have considered in connection with his current appeal. No action is required of the appellant unless or until he is notified. BRUCE KANNEE 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).