Citation Nr: 0021287 Decision Date: 08/14/00 Archive Date: 08/23/00 DOCKET NO. 96-00 503 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Keith D. Snyder, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Schlosser, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Navy from March 13, 1968, to November 13, 1968. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an April 1994 rating decision in which the RO denied service connection for PTSD. The veteran appealed and was afforded two hearings at the RO, in June 1995 and April 1998. His claim was denied and the veteran continued his appeal. By decision of March 1999, the Board denied service connection for PTSD. The veteran remained dissatisfied with the denial of service connection for PTSD and appealed to the United States Court of Appeals for Veterans Claims (Court). By Order of the Court in November 1999, a Joint Motion filed by the parties was granted. The March 1999 Board decision was vacated and the case has been remanded to the Board for further action. REMAND The March 1999 Board decision concluded that the veteran had presented a well grounded claim of entitlement to service connection for PTSD. The Board rejected the veteran's report of combat stressors and the mugging incident in service was found to be unrelated to the diagnosis of PTSD. With respect to the alleged sexual assault in service, the veteran reported that he told a corpsman and a chaplain about the incident. The March 1999 Board decision determined that adequate attempts had been made by the RO to verify the stressful events cited by the veteran, and that none were verified. In the decision on the merits, the Board found that the diagnosis of PTSD was not based on a verified in- service stressor. As such, service connection for PTSD was denied. In the November 1999 Joint Motion which was granted by the Court however, it was suggested that there had been insufficient discussion of whether the efforts to verify the veteran's stressor of sexual assault in service were in compliance with VA Adjudication Procedure Manual M21-1 provisions regarding the development of claims based upon personal assault. The March 1999 Board decision was vacated and remanded to the Board for attention to this matter. The veteran has maintained that he has PTSD due in part to being sexually abused aboard ship in service. With respect to the veteran's alleged sexual assault in service, statements from the veteran as to whether there was an assault or whether the sexual activity was consensual are inconsistent. There are medical records associated with the veteran's treatment for two concussions in 1968 while he was in service that noted a history of recent participation in a consensual homosexual encounter. During the course of hospitalization, the veteran reported that he had passively engaged in a homosexual act because he was broke and the active partner offered him money. On VA psychiatric examination in September 1997, the veteran reported that he suffered PTSD due in part to a homosexual rape during service by several shipmates. In a May 1997 letter, the VA staff psychologist who had conducted the January 1996 testing noted that the veteran suffered PTSD, related to his military service. The psychologist noted several incidents cited by the veteran: "head traumas from at least two muggings and being homosexually raped by several of his fellow shipmates." The record reveals that the RO sent the veteran a letter in August 1997 requesting specific information about the alleged in-service sexual assault. The veteran replied in September 1997 and reported that he had told a clergy and corpsman about the assault. No further action was taken by the RO to verify the veteran's reported stressor pertaining to a sexual assault in service. In an April 1998 letter to the veteran's representative, the psychologist who had conducted the January 1996 examination noted that it appeared that the veteran did have symptoms associated with PTSD, centered around his "reported and documented assaults while in service." The diagnosis was that of PTSD, chronic with delayed onset. The veteran was afforded a VA psychiatric examination in June 1998, which included a review of the claims folder and examination of the veteran. The veteran related that the most memorable events were the instances in which he was mugged and homosexually assaulted aboard ship. He stated that he had told a corpsman and chaplain about the sexual assault; however, he was not sure when he reported it and did not know if a record had been made. During the course of this appeal, the veteran was afforded two hearings at the RO. At the June 1995 hearing, the veteran testified that he did not recall much about service. He testified that he cleaned coffins prior to loading them on ships and was locked up for 30 days prior to discharge, although he does not know the reason. He further testified that he remembered only alarms and sirens going off, cleaning coffins and being locked on a psychiatric ward. At the April 1998 hearing, the veteran again testified that he did not recall much from service. He did recall being mugged and hit in the face and testified that he continued to relive that experience. He also testified that he was homosexually raped during service and told only a chaplain and medical corpsman about the experience. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with the provisions of 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in- service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (1999); Cohen v. Brown, 10 Vet. App. 128 (1997). Insofar as the veteran contends that he has PTSD due to a noncombat stressor, namely a sexual assault in service, the Court has held that "credible supporting evidence" means that the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). The VA Adjudication Procedure Manual M21-1 (M21-1) provides that the required "credible supporting evidence" of a noncombat stressor "may be obtained from" service records or "other sources." M21-1, part VI, 7.46. In Patton v. West, 12 Vet. App. 272 (1999), the Court recently discussed the relevance of the above M21-1 provisions. In that case, the Court observed that such provisions provide, among other things, that the general PTSD stressor development letter is inappropriate for this type of claim, and state instead that the RO should rely on special letter formats expressly developed for use in personal assault claims. See M21-1, Part III, 5.14 (c)(4, 6 and 7). Specific to claims based upon personal assault, M21-1, part III, 5.14c provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred, to include statements from family members or clergy, as well as other evidence of behavioral changes to include as established by personnel and other records and lay statements. As such, on remand, the RO must ensure that the special evidentiary provisions relating to claims for service connection for PTSD based on a personal assault, which are contained in VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14, are complied with. In completing the actions requested on remand, the RO also should comply with the relevant M21-1 provision concerning the post-development determination as to whether a claimed stressor is (or, is not) established by the record. In this regard, the Board would emphasize that the requirement that credible evidence establish that the stressful event actually occurred does not mean that the evidence actually proves that the incident occurred, but, rather, that the preponderance of the evidence, as a whole, supports the conclusion that it occurred. See VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c)(3). Finally, if, after completion of the requested development, the RO determines that the occurrence of a sexual assault in service is established, the RO should schedule the veteran to undergo a further psychiatric examination to determine whether such experience is of sufficient severity to result in a diagnosis of PTSD. In view of the foregoing, this matter is hereby REMANDED to the RO for the following action: 1. The RO should contact the veteran and request that he submit a list (concerning names, dates and addresses) for all alternative objective sources that may establish the occurrence of the claimed stressor described as a sexual assault in service. This should specifically include medical records from physicians or caregivers who may have treated the veteran either immediately following an incident or sometime thereafter; and military and/or civilian police reports. After securing any necessary release form(s), the RO should directly contact the sources that are identified, obtain copies of the relevant records in their possession that are not already in the claims file, and associate such records with the claims file. The aid of the veteran and his representative in securing such records should be enlisted, as needed. The veteran should be advised that this information is vitally necessary to obtain supportive evidence of the claimed stressful event. 2. The RO should also request that the veteran submit signed statements from persons having personal knowledge of his claimed stressor of having been sexually assaulted in service, to include confidants such as family members, roommates, fellow service members or clergy. The veteran should be notified that statements from persons who knew the veteran during his period of active duty as well as subsequent to separation from military service will be considered. Each person's name and complete address should clearly be shown. Each statement should describe exactly what the person observed and mention specific dates and places. A person on active duty at the time should include his or her service number and military unit. The veteran should also submit copies of any personal diaries or journals pertaining to the occurrence of the claimed stressors. The veteran should be advised that this information is vitally necessary to obtain supportive evidence of the stressful event. 3. If, after undertaking the development set forth above, the RO determines that there is confirmation of the veteran being sexually assaulted in service, he should be accorded a VA psychiatric examination to ascertain the presence or absence of PTSD, and, if present, whether it is related to the veteran being sexually assaulted in service. If the examination is conducted, the examiner must review the claims folder, including this remand, prior to the examination and so state in his report. If a diagnosis of PTSD is deemed appropriate, then the examiner should explain how the diagnostic criteria of the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and one or more of the in-service stressors found to be established by the record. If the RO determines that the reported sexual assault in service is not corroborated by independent evidence, the above-noted VA psychiatric examination need not be conducted. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the aforementioned development action has been conducted and completed in full. If any requested development is not undertaken or is incomplete, appropriate corrective action is to be implemented. 5. The RO should then re-adjudicate the veteran's claim of service connection for PTSD based on claimed sexual assault in service, based on all pertinent evidence of record. The RO should provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, and specifically to Manual M21-1. In doing so, the RO must address all issues and concerns that were noted in this REMAND. 6. If the benefits sought by the veteran continue to be denied, he and his representative must be furnished with a supplemental statement of the case and given an opportunity to submit written or other argument in response thereto before his case is returned to the Board for further appellate consideration. The purpose of this REMAND is to comply with an order of the Court, and to ensure that all due process requirements are met; it is not the Board's intent to imply whether the benefits requested should be granted or denied.. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. 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).