Citation Nr: 0022364 Decision Date: 08/24/00 Archive Date: 08/25/00 DOCKET NO. 96-12 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE 1. Entitlement to service connection for PTSD. 2. Entitlement to service connection for depression. ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active service from February 1978 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Portland, Oregon, regional office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to service connection for depression will be discussed in the remand section at the end of this decision. FINDINGS OF FACT 1. The veteran has stated that she was raped on two different occasions during active service, and service medical records show treatment for symptoms that include depression, anxiety, and drug overdose. 2. Current diagnoses of PTSD have been related to sexual assaults in service in a June 1997 examination by a social worker and by the November 1997 VA examiner. CONCLUSIONS OF LAW The claim of entitlement to service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that she has developed PTSD as a result of sexual assaults during active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter; 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). In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). The veteran has submitted statements in which she indicates her PTSD is the result of two separate stressful incidents during service. The first incident occurred while in route to basic training. She states that all of the new recruits who were headed to basic training were traveling together by bus, and that they stopped to spend the night at a motel. She says that she was sexually assaulted by six other recruits during the night. The second incident involved her commanding sergeant, who she states coerced her into having sexual relations. A review of the service medical records shows that the veteran was seen at the community mental health center in June 1978 following a drug overdose. In addition, she was hospitalized from November 1978 to December 1978 following suicide threats. The final diagnoses included adjustment reaction of adult life, manifested by symptoms of anxiety and depression. A June 1997 letter from a social worker at the Vet Center in Salem, Oregon, indicates that she was seeing the veteran on a regular basis. The diagnoses were PTSD, and dysthymic disorder with atypical features. A second June 1997 letter from this same social worker relates the veteran's current disabilities to the rapes that were reported during active service. The veteran was afforded a VA psychiatric examination in November 1997. The claims folder was available for review. The history of her claimed sexual assaults in service were noted and discussed. The examiner also reviewed the service medical records, and noted that the timing of her claimed assaults were roughly the same time that she sought treatment for various vague complaints. The examiner stated that she was inclined to believe that the sexual assaults had occurred, and that the veteran had sex with her commanding sergeant. Following examination, the diagnoses included PTSD, secondary to multiple assaults and abusive relationships, including the gang rape while in the military, and dysthymia, with recurrent major depressive disorder. The Board finds that the veteran has submitted evidence of a well grounded claim for entitlement to service connection for PTSD. The veteran's stressors are presumed to have occurred for the purpose of determining whether or not the claim is well grounded. The veteran has submitted numerous diagnoses of PTSD, and her examiners have related this disability to her alleged assaults during active service. Moreau v. Brown, 9 Vet. App. 389, 393 (1996). Therefore, the veteran's claim for entitlement to service connection for PTSD is well grounded. ORDER The claim of entitlement to service connection for PTSD is well grounded. To this extent only, the appeal is granted. REMAND Because the claim for entitlement to service connection for PTSD is well grounded, VA has a duty to assist the veteran in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The veteran's claim for entitlement to service connection for PTSD is based on the alleged occurrence of personal assaults in active service. In view of the difficulty in the verification of stressors involving personal assault, the VA has provided for special evidentiary development procedures which must be followed in the adjudication of PTSD claims involving personal assault. These are found at M21-1, Part III, 5.14 (c). The United States Court of Appeals for Veterans Claims (Court) has held that these provisions must be followed and considered in the evaluation of PTSD claims involving assault. See Patton v. West, 12 Vet. App. 272 (1999). However, the Court also noted that the references in these provisions to stressors being supported by a preponderance of the evidence were in error, and in conflict with the provisions of 38 U.S.C.A. § 5107(b) concerning reasonable doubt. A review of the record indicates that the veteran was mailed a questionnaire requesting some of the information sought by M21-1, Part III, 5.14 (c) in July 1997, and that the veteran returned this questionnaire and an additional statement in August 1997. Furthermore, the November 1997 VA examination report reveals that the examiner made brief comments concerning the timing between the veteran's claimed assaults and certain treatment rendered in service. However, there is no indication contained in the rating decisions, the Statement of the Case, or the Supplemental Statements of the Case that the provisions of M21-1, Part III, 5.14 (c), especially M21-1, Part III, 5.14 (c)(7) were considered in reaching a determination in this case. Furthermore, there is no indication that the RO requested the VA examiners to interpret the veteran's behavior in service in relation to the diagnoses of PTSD, as indicated at M21-1, Part III, 5.14 (c)(8). The Board finds that this claim must be returned to the RO to ensure consideration of these provisions. The Board further finds that the issue of entitlement to service connection for depression is inextricably intertwined with the issue of service connection for PTSD. Therefore, the issue of entitlement to service connection for depression must also be remanded to the RO for consideration with the issue of entitlement to service connection for PTSD. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, in order to assist the veteran in the development of her claims and to afford her due process, these claims are REMANDED to the RO for the following development: The RO should fully consider the provisions of M21-1, Part III, 5.14 (c) in relation to the veteran's claim for service connection for PTSD. Any additional development indicated by these provisions should be completed, including interpretation of secondary evidence of the occurrence of the veteran's claimed stressors by a VA medical specialist, as noted at M21-1, Part III, 5.14 (c)(8). The steps taken in consideration of these provisions should be fully documented and placed within the claims folder. Afterwards, the RO should again review the record. Following the review, the RO should reconsider the issues of entitlement to service connection for PTSD and depression. If either benefit sought on appeal remains denied, the veteran should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The rating decision and Supplemental Statement of the Case should contain M21- 1, Part III, 5.14 (c), as well as a discussion of these provisions, in particular the application of M21-1, Part III, 5.14 (c)(7), as to why or why not the alleged stressors are verified. The RO should be mindful that a preponderance of the evidence is NOT required to verify the stressors, and that there only needs to be an approximate balance of the positive and negative evidence pertaining to verification of the stressors. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until otherwise notified. The veteran 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. A. BRYANT Member, Board of Veterans' Appeals - 3 -