Citation Nr: 0025518 Decision Date: 09/25/00 Archive Date: 10/04/00 DOCKET NO. 99-10 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Michael J. Kelley, Attorney at Law ATTORNEY FOR THE BOARD Keith W. Allen, Counsel INTRODUCTION The veteran served on active duty in the military from November 1980 to November 1984. In January 1999, the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, denied the veteran's claim for service connection for post-traumatic stress disorder (PTSD). He appealed the RO's decision to the Board of Veterans' Appeals (Board). FINDING OF FACT There is competent medical evidence of record indicating the veteran has PTSD that is possibly the result of being raped while serving on active duty in the military. CONCLUSION OF LAW The veteran's claim for service connection for PTSD based on a personal assault in service is well grounded. 38 U.S.C.A. § 5107(b) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran alleges that he is entitled to service connection for PTSD because he acquired the condition as a result of a personal assault (being raped) by one of his superior officers while on active duty in the military. Service connection for PTSD requires medical evidence establishing a diagnosis in accordance with 38 C.F.R. § 4.125(a) (a diagnosis must conform to DSM-IV and be supported by findings on examination), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 137-138 (1997). But a veteran who files a claim for VA benefits has the initial, preliminary burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is "well grounded"-meaning at least plausible or capable of substantiation. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Such a claim need not be conclusive-but only possible-to satisfy the threshold burden of 38 U.S.C.A. § 5107(a). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for the purpose of determining whether the claim is well grounded, unless they are inherently incredible or the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). And if the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). A claimant cannot meet this burden merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The veteran's service medical and personnel records indicate that he committed four separate Article 15 offenses while on active duty involving various violations of the Uniform Code of Military Justice (UCMJ)-including making inappropriate contact and verbally abusing some new recruits, dereliction in the performance of his duties, and blatant insubordination of his superiors. He ultimately elected to receive non- judicial punishment in lieu of being referred for trial by either a summary or special court-martial. However, two of the incidents in question occurred in November 1980 and October 1982, respectively, prior to March 1983 when he alleges that he was raped. But regardless of that, both of the remaining two incidents occurred after the alleged rape, in August 1984, and shortly after the latter he was demoted in rank from sergeant to lance corporal. He also received treatment that same month for complaints of "stress" related to his duties at Parris Island, South Carolina. He said that he needed a transfer off the base. His doctors initially suspected that he had an overanxious disorder and recommended that he be transferred because of his psychological problems. But when he was seen again later that month, they indicated that he appeared to have a passive-aggressive personality disorder. His repeated offenses were of such gravity that it was subsequently recommended that he not be allowed to re-enlist in the military, and he was released from active duty in November 1984. In 1992, the veteran began receiving treatment and counseling in a VA outpatient clinic because he was homeless and abusing cocaine, which he said that he had been doing for about 4-5 years. He also said that he was currently employed as a cook, but that he had held several (at least 12) different jobs during that year, alone. He received further treatment for this on various occasions during 1995, 1996, 1998 and 1999, and his doctors made several, varying diagnoses-aside from the homelessness and substance abuse-of affective disorder, personality disorder, dysthymia and psychosis. They also suspected that he had PTSD. And other medical evidence of record, including the reports of two separate psychiatric evaluations in November 1998, a March 1999 statement from a readjustment counselor at The Boston Vet Center, and other records pertaining to treatment that the veteran received in March 1999, not only confirm the diagnosis of PTSD, but also indicate that he possibly developed the condition as a result of being raped in service. Consequently, inasmuch as this evidence suggest a possible relationship between the current diagnosis of PTSD and the purported rape in service, the claim is at least plausible and, therefore, is well grounded. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). ORDER The veteran's claim for service connection for PTSD is well grounded; the appeal is granted to this extent, subject to the further development directed below. REMAND Since the Board has determined that the veteran's claim for PTSD is well grounded, then VA has a "duty to assist" him in fully developing the evidence pertinent to the claim. 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). And where, as here, the claim is based on an alleged personal assault such as a rape, VA has a special obligation to assist the veteran in developing the claim. See Patton v. West, 12 Vet. App. 272 (1999). In this regard, the United States Court of Appeals for Veterans Claims (Court) has noted that VA's Adjudication Procedure Manual M21-1 (Manual M21-1), Part III, 5.14(c) provides very specific requirements for assisting the veteran in these types of cases, due to the unique circumstances and inherent difficulty often involved in substantiating and documenting these claims. This includes giving him an opportunity to submit "alternative evidence" supporting his allegations since the service records "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." See Manual M21-1, Part III, 5.14(c)(5). Such alternative source evidence also may include, among other things, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, as well as copies of personal diaries or journals or evidence of substance abuse and/or performance evaluations. Still other forms of alternative source evidence may include records showing the veteran had behavioral changes that occurred at the time of the incident in question, such as visits to a medical counseling or 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, increased disregard for military or civilian authority, unexplained economic or social behavior changes, etc. Id; see also Manual M21-1, Part VI, 7.46c(2) and 11.38. The veteran has not been given an opportunity to submit this type of alternative source evidence, and he must prior to further consideration of his claim. Manual M21-1, Part III, 5.14(c); see also Patton, supra. It also should be noted that it is not necessary for him to actually prove that the incident in question occurred, but rather, it is only necessary that the preponderance of the evidence support the conclusion that it did. Also, if such additional evidence is submitted or otherwise obtained which corroborates the claimed stressor, he should undergo another VA psychiatric examination to obtain a medical opinion as to whether there is an etiological relationship between his current PTSD and the alleged sexual assault in service. See Green v. Derwinski, 1 Vet. App. 121 (1991). In this regard, it is imperative that the examiner be given the opportunity to review the file, so that all of the veteran's history shown in the records (for example, the 2 Article 15 offenses which occurred before the purported assault, and his long history of use of illegal drugs) or that reported by him (his claim in July 1998 of sexual abuse in childhood by a family member and parental neglect and abuse) be considered. Accordingly, the claim is hereby REMANDED to the RO for the following development: 1. The RO should contact the veteran and request that he provide a more detailed written account (including a specific date, location, names of other persons involved, etc.) of the alleged sexual assault during service. He must be apprised that this information is necessary to obtain supportive evidence of the purported stressful incident in service, and that he must be as specific as possible because without such details an adequate search for verifying information cannot be conducted. Additionally, the RO should give him an opportunity to submit and/or identify any "alternative sources of evidence," including those alluded to above, that might also substantiate his alleged stressor in service. 2. The RO should then request any supporting evidence from the alternative sources identified by the veteran and any additional alternative sources deemed appropriate, if he has provided sufficiently detailed information to make such a request feasible. The RO should follow all applicable procedures in Manual M21-1, Part III, 5.14(c). And any such additional evidence submitted or otherwise obtained should be associated with the other evidence of record in the claims folder. 3. All up-to-date VA records of treatment for a psychiatric disorder and/or substance abuse should be obtained and made a part of the record. 4. If the RO determines that there is evidence of behavior changes at the time of an alleged stressor which might indicate the occurrence of an in-service stressor, or if otherwise deemed necessary, the RO should obtain interpretation of such evidence by a clinician as provided in M21-1, Part III, 5.14(c)(9). 5. The RO should then review the file and make a specific written determination, in accordance with the provisions of 38 C.F.R. § 3.304(f) and M21-1, Part III, 5.14(c), with respect to whether the veteran was exposed to a stressor, or stressors, in service, and, if so, the nature of the specific stressor or stressors established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 6. Thereafter, if any claimed in-service stressor is corroborated by the evidence or if otherwise deemed warranted, the RO should schedule the veteran for another VA psychiatric examination to determine whether it is at least as likely as not that his current PTSD is the result of a sexual assault (rape) during service. The claims file, a separate copy of this remand, and a list of the stressor(s) found by the RO to be corroborated by the evidence must be provided to the examiner for review, the receipt of which should be acknowledged in the examination report. It is imperative that the psychiatrist designated to examine the veteran review all of the relevant evidence in the claims file, including a complete copy of this remand. The examiner should clearly set forth his/her findings and opinions in a typewritten report, citing, if necessary, to specific evidence in the record. And since the purpose of the examination is to determine the medical probability that the veteran has PTSD as a residual of his military service-and in particular a sexual assault (rape)- the examiner's report of the evaluation should contain a discussion of the evidence in this regard. Also, any diagnosis of PTSD should be in accordance with the criteria of DSM-IV. And if PTSD is diagnosed, the examiner should clearly identify the date of onset and the stressor which is deemed to be the cause of the condition. The report of the evaluation should be associated with the other evidence on file in the veteran's claims folder. 7. The RO should review the examination report to determine if it is in compliance with the directives of this remand. If not, it should be returned, along with the claims file, for immediate corrective action. See 38 C.F.R. § 4.2. 8. If the benefit sought on appeal continues to be denied, the veteran and his attorney should be furnished a Supplemental Statement of the Case (SSOC) and given an opportunity to submit written or other argument in response before the case is returned to the Board for further appellate consideration. The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet. App. 268 (1998). Although the instructions in this remand should be carried out in a logical chronological sequence, no instruction in this remand may be given a lower priority in terms of the necessity of carrying out the instruction completely. The purpose of this remand is to afford due process and to further develop the record; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument. 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 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. 2000) (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. N. R. ROBIN Member, Board of Veterans' Appeals