Citation Nr: 0021116 Decision Date: 08/11/00 Archive Date: 08/18/00 DOCKET NO. 96-32 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kenneth Carpenter, Attorney- at-Law WITNESSES AT HEARING ON APPEAL Appellant and C.M. ATTORNEY FOR THE BOARD J. Fussell, Counsel REMAND The veteran had active service from November 1981 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). Following remand of the case in July 1998, a Board decision in July 1999 denied service connection for PTSD but on appeal to 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) the July 1999 Board decision was vacated and the matter remanded for readjudication, pursuant to the Court's Order granting a joint motion for remand. The joint motion noted that the claim for service connection for PTSD had been found to be well grounded but that because the veteran had not submitted "credible supporting evidence to show that his burn injury occurred as a result of his girlfriend scalding him with hot water" the claim had been denied. The joint motion further noted (citing YR v. Brown, 11 Vet. App. 393 (1998) and Patton v. West, 12 Vet. App. 272, 278 (1999)) that Board did not discuss supporting evidence with regard to the provisions of the VA Adjudication Procedure Manual M21-1, Part III, para. 5.14(c) (Feb. 20, 1996), or whether there was adequate compliance with such M21-1 provision. In Patton v. West, 12 Vet. App. 272, 279-80 (1999) the Court noted that with respect to claims for service connection based on a personal assault: MANUAL M21-1, Part III, P 5.14c, states in pertinent part: (1) Veterans claiming service connection for disability due to an in-service personal assault face unique problems documenting their claims. Personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking. Although most often these incidents involve female veterans, male veterans may also be involved. Care must be taken to tailor development for a male or female veteran. These incidents are often violent and may lead to the development of PTSD secondary to personal assault. It is possible for someone to develop symptoms of PTSD as a result of this type of stressful experience. . . . (2) 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. Therefore, alternative evidence must be sought. (3) To service connect PTSD, there must be credible evidence to support the veteran's assertion that the stressful event occurred. This does not mean that the evidence actually proves that the incident occurred, but rather that the preponderance of evidence supports the conclusion that it occurred. (5) The service record may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. Therefore, development to alternative sources for information is critical. Alternative sources that may provide credible evidence of the in- service stressor include: (a) Medical records from private (civilian) physicians or caregivers who may have treated the veteran either immediately following the incident or sometime later; (b) Civilian police reports; (c) Reports from crisis intervention centers such as rape crisis centers or centers for domestic abuse; (d) Testimonial statements from confidants such as family members, roommates, fellow service members, or clergy; (e) Copies of personal diaries or journals. (6) Identifying possible sources of alternative evidence will require that you ask the veteran for information concerning the incident. This should be done as compassionately as possible in order to avoid further traumatization. The PTSD stressor development letter used by regional offices to solicit details concerning the in-service stressful incident may be inappropriate for this type of PTSD claim. Therefore, if the stressful incident is a personal assault, use Exhibit A.3 or a letter developed locally for this type of claim. (7) The suggested attachment to the development letter shown in Exhibit A.1 is inappropriate for PTSD claims based on personal assault and should not be used for that purpose. Instead use Exhibit A.4 to this letter or an attachment developed locally. (8) Rating board personnel must carefully evaluate all the available evidence. If the military record contains no documentation that a personal assault occurred, alternative evidence might still 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 not limited to): (a) Visits to medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; (b) Sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; (e) Lay statements describing episodes of depression, panic attacks or anxiety but no identifiable reasons for the episodes; (h) Evidence of substance abuse such as alcohol or drugs; (9) Rating 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 may need interpretation by a clinician, especially if it involves behavior changes. Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. In Patton v. West, 12 Vet. App. 272, 280 (1999) it was noted that other than in a reopening context the provisions of M21- 1 "show that in personal-assault cases [VA] has undertaken a special obligation to assist a claimant [who has submitted a well grounded claim] in producing corroborating evidence of an in-service stressor." "As to statements contained in prior decisions indicating that 'something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'', and that '[a]n opinion by a mental health professional based on a postservice examination of the veteran cannot be used to establish the occurrence of the stressor,' the Court states that these quoted categorical statements were made in the context of discussing PTSD diagnoses other than those arising from personal assault. As to such personal-assault cases [] VA has provided for special evidentiary-development procedures, including interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis. MANUAL M21-1, Part III, 5.14c(8), (9). To that extent, the above categorical statements in Cohen (Douglas) and Moreau, and other case where they may have been echoed, are not operative." Patton v. West, 12 Vet. App. 272, 280 (1999). In Patton v. West, 12 Vet. App. 272, 280 (1999) it was also noted that M21-1, Part III, para. 5.14 "appears to improperly require that the existence of an in-service stressor be shown by 'the preponderance of the evidence'" but that this "requirement would be inconsistent" with the equipoise doctrine embodied in 38 U.S.C.A. § 5107(b) and thus the "equipoise standard of proof, of course, not the preponderance standard, must be applied." In this case, the veteran testified that after his girlfriend had intentionally scalded him with hot water, a friend had taken him to the military hospital where he was treated for the burns, although he had not told treating physicians the truth as to the cause of the burns (pages 7 and 8 of the transcript of the April 30, 1998 Board hearing). Thus, it appears that the veteran's ex-girl friend and the friend that took him to the hospital may be corroborating sources for stressor verification, and the RO should contact the veteran and request that he provide such information as he has, or can obtain, with respect to the current whereabouts of these individuals or others, such as family members, confidants or post service treating sources. If these individuals, confidants, treating sources or family members can be located the RO should take the appropriate steps to obtain corroborating evidence. Lastly, the veteran has reported having filed a claim with the Social Security Administration for benefits due to impairment from PTSD. Accordingly, the case is remanded for the following actions: 1. The RO should obtain all decisions and award letters from the Social Security Administration concerning the veteran's award of disability benefits. This must also include all underlying medical records in the possession of the Social Security Administration. These records must then be associated with the claim file. 2. The RO should take the procedural steps set forth in the M21-1, Part III, paragraph 5.14, with respect to PTSD claims based on personal assaults, to included but not be limited to obtaining information from the veteran as to the name and current address of the ex- girlfriend that scalded him with hot water and the friend that took him to the military hospital for treatment of those burns. He should also be requested to provide the names and addresses of ALL individuals, including any and all confidants, family members and post service treating sources to whom he has related the truth of the circumstances surrounding his inservice scalding, as well as the dates when he related such information. The veteran should also be requested to provide as much detailed information as to the sources which can document any and all behavioral changes which he underwent, at any time, due to the inservice scalding episode. All leads should be followed-up and the RO should attempt to obtain all such information and records. 3. Thereafter, the RO should review the claims file, together with all additionally obtained evidence, to determine whether there is any evidence that documents behavioral changes in relationship to the diagnosis of PTSD. If necessary, the evidence should be reviewed by a VA psychologist for interpretation pursuant to the M21-1, Part III, paragraph 5.14(c)(9). The RO should then readjudicate the claim de novo, and in any determination as to whether there is corroborating evidence of the inservice stressor, the RO must apply the equipoise standard of proof contained in 38 U.S.C. § 5107(b), and not the preponderance of the evidence standard cited in the M21-1. 4. If, and only if, the RO determines that the record establishes the existence of a stressor or stressors, then the RO should arrange for the veteran to be afforded an examination by a board of two VA psychiatrists, if available, who have not previously examined him to determine the diagnoses of all psychiatric disorders that are present. The RO must specify for the examiners the stressor or stressors that it has determined are established by the record and the examiners must be instructed that only those events may be considered for the purpose of determining whether the appellant was exposed to a stressor in service. The examination report should reflect review of pertinent material in the claims folder. If a diagnosis of PTSD is made, the examiners should specify (1) whether each alleged stressor found to be established by the record by the RO was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the inservice stressors found to be established by the record by the RO and found to be sufficient to produce PTSD by the examiners. The examination report should include the complete rationale for all opinions expressed. All necessary special studies or tests, to include psychological testing and evaluation, should be accomplished. The entire claims folder and a copy of this REMAND must be made available to the examiners prior to the examination. If the benefit sought on appeal is not granted to the veteran's satisfaction, a supplemental statement of the case should be prepared which includes a discussion of the provisions of 38 C.F.R. § 3.304(f) (1999), and the veteran and his representative should be given a reasonable period of time for reply. Thereafter, the claim should be returned to the Board for further review, if otherwise in order. No action is required of the veteran until he receives further notice. By this remand, the Board does not suggest any conclusions as to the final outcome warranted in the appeal. 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. THOMAS J. DANNAHER 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).