Citation Nr: 0026401	
Decision Date: 09/22/00    Archive Date: 10/05/00

DOCKET NO.  98-06 349	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUES

1.  Entitlement to service connection for an acquired 
psychiatric disorder, to include post-traumatic stress 
disorder (PTSD).

2.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for the 
residuals of exposure to lysergic acid diethylamide (LSD).


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

M.S. Lane, Associate Counsel



INTRODUCTION

The veteran served on active duty from March 1950 to March 
1951.

This matter comes to the Board of Veteran's Appeals (Board) 
on appeal from a January 1998 rating decision by the 
Department of Veteran's Affairs (VA) Regional Office (RO).

The issues on appeal

In the January 1998 rating decision, the RO characterized the 
issues on appeal as claims of entitlement to service 
connection for PTSD and entitlement to service connection for 
the residuals of drug experimentation.  However, in a January 
2000 Supplemental Statement of the Case, the RO characterized 
the issues on appeal as one claim of entitlement to service 
connection for PTSD (claimed as secondary to forced LSD 
exposure in service and/or sexual assault in service).

Having reviewed the record, the Board is of the opinion that 
the issues on appeal are more appropriately characterized as 
two separate claims, one for service connection for a 
acquired psychiatric disorder, to include PTSD, and the 
second involving whether new and material evidence has been 
submitted which is sufficient to reopen the veteran's 
previously-denied claim of entitlement to service connection 
for residuals of LSD exposure.  

Although the veteran and her representative have made 
statements asserting that exposure to LSD was one of the 
stressors that led to her development of PTSD, the veteran 
has also made various statements in which she appears to be 
asserting that her LSD exposure has led to other disabilities 
as well.  Thus, in order to give full consideration to the 
veteran's claims, the Board believes that the issue of 
entitlement to service connection for the residuals of LSD 
exposure should remain as a separate and distinct claim from 
that of entitlement to service connection for an acquired 
psychiatric disorder, to include PTSD.

With respect to the veteran's claim of entitlement to service 
connection for residuals of exposure to LSD, she essentially 
contends that she has incurred various disabilities, 
including hypertension, myocardial ischemia and a branch 
artery occlusion of the right eye, as a result of exposure to 
LSD during service.

The record reflects that in September 1975, the veteran filed 
a claim of entitlement to service connection for the 
residuals of exposure to LSD in service.  She contended that 
LSD had been known to affect various organs, as she believed 
it had done to her.  In an October 1975 rating decision, the 
RO denied this claim.  The RO determined that there was no 
evidence that the veteran had participated in LSD experiments 
in service and no evidence of any service-connected 
disabilities resulting from those experiments.  The veteran 
was notified of this decision in an October 1975 letter from 
the RO.  She did not appeal that determination.

If a decision by the agency of original jurisdiction is not 
appealed within one year from the date of notification of 
that decision, that determination will become final.  See 38 
U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.200, 
20.302, 20.304, 20.1103 (1999).  If a claimant later wishes 
to reopen her claim, it is required that new and material 
evidence be presented which provides a basis for reopening 
the claim.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (1999).

The RO has characterized the issue on appeal as an original 
claim of entitlement to service connection for the residuals 
of LSD exposure.  However, based on the procedural history of 
this issue, the Board is of the opinion that the issue is 
more appropriately characterized as an attempt to reopen a 
previously denied claim of entitlement to service connection 
for the residuals of LSD exposure.  

The issue of entitlement to service connection for the 
residuals of LSD exposure will be addressed in the remand 
portion of this decision.

Other issues

In a February 1999 rating decision, the RO denied the 
veteran's claims of entitlement to compensation benefits 
under 38 U.S.C.A. § 1151 (West 1991) for an abdominal absess 
or wound, claimed as secondary to a hysterectomy performed in 
1971, and entitlement to service connection for her son's 
craving for LSD.  The veteran subsequently filed a timely 
Notice of Disagreement regarding this decision, and, in 
January 2000, the RO responded by issuing a Statement of the 
Case.  To the Board's knowledge, the veteran did not submit a 
Substantive Appeal (VA Form 9) regarding these issues.  Thus, 
these matters are not presently before the Board on appeal.  
38 U.S.C.A. 7105 (West 1991); 38 C.F.R. 20.200, 20.202, 
20.302 (1999).


FINDING OF FACT

The veteran has submitted evidence sufficient to justify a 
belief by a fair and impartial individual that her claim of 
entitlement to service connection for an acquired psychiatric 
disorder, to include PTSD, is plausible.


CONCLUSION OF LAW

The veteran's claim of entitlement to service connection for 
an acquired psychiatric disorder, to include PTSD, is well 
grounded.  38 U.S.C.A. § 5107(a) (West 1991).


REASONS AND BASES FOR FINDING AND CONCLUSION

Relevant Law and Regulations

Service connection - in general

In general, under pertinent law and VA regulations, service 
connection may be granted if the evidence establishes that 
the veteran's claimed psychiatric disability was incurred in 
service.  38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. 
§ 3.303(a) (1999).  Service connection for a psychosis may be 
presumed if it is manifested to a degree of 10 percent within 
one year from the date of separation from a period of 
qualifying active service lasting 90 or more days.  38 
U.S.C.A. §§ 1101(3), 1110, 1112, 1113 (West 1991); 38 C.F.R. 
§§ 3.307, 3.309 (1999).

Service connection - PTSD

On order for service connection to be awarded for PTSD, three 
elements must be present: (1) a current medical diagnosis of 
PTSD; (2) medical evidence of a causal nexus between current 
symptomatology and the claimed in-service stressor; and 
(3) credible supporting evidence that the claimed in-service 
stressor actually occurred.  38 C.F.R. 3.304(f); Moreau v. 
Brown, 9 Vet. App. 389 (1996).

In Zarycki v. Brown, the Court set forth the analytical 
framework and line of reasoning for determining whether a 
veteran was exposed to a recognizable stressor during 
service, which, as discussed above, is an essential element 
in solidifying a claim for service connection for PTSD.  6 
Vet. App. 91 (1993).  In Zarycki, it was noted that, under 38 
U.S.C.A. 1154(b), 38 C.F.R. 3.304(d) and (f), and the 
applicable provisions contained in VA Manual 21-1, the 
evidence necessary to establish the incurrence of a 
recognizable stressor during service to support a claim of 
service connection for PTSD will vary depending on whether 
the veteran "engaged in combat with the enemy."  See Hayes 
v. Brown, 5 Vet. App. 60 (1993).  The determination as to 
whether the veteran "engaged in combat with the enemy" is 
made, in part, by considering military citations that 
expressly denote as much.  Doran v. Brown, 6 Vet. App. 283, 
289 (1994).  However, the Court has recently held that the 
Board may not rely strictly on combat citations or the 
veteran's MOS to determine if he engaged in combat; rather, 
other supportive evidence of combat experience may also be 
accepted.  See Dizoglio v. Brown, 9 Vet. App. 163, 166 
(1996); West v. Brown, 7 Vet. App. 70, 76 (1994).  If combat 
is affirmatively indicated, then the veteran's lay testimony 
regarding claimed combat-related stressors must be accepted 
as conclusive as to their actual occurrence and no further 
development or corroborative evidence will be required, 
provided that the veteran's testimony is found to be 
"satisfactory," i.e., credible, and "consistent with the 
circumstances, conditions, or hardships of such service."  
Zarycki, 6 Vet. App. at 98.

If there is no combat experience, or if there is a 
determination that the veteran engaged in combat but the 
claimed stressor is not related to such combat, there must be 
independent evidence to corroborate the veteran's statement 
as to the occurrence of the claimed stressor.  Doran, 6 Vet. 
App. at 288-89 (1994).  The veteran's testimony, by itself, 
cannot, as a matter of law, establish the occurrence of a 
non-combat stressor.  Dizoglio, 9 Vet. App. at 166 (1996).  
Further, an opinion by a mental health professional based on 
a post-service examination of the veteran cannot be used to 
establish the occurrence of a stressor.  Moreau v. Brown, 9 
Vet. App. at 395-96 (1996); Cohen v. Brown, 10 Vet. App. 128 
(1997).

Well grounded claims

The threshold question in any veteran's claim for service 
connection is whether that claim is well grounded pursuant to 
38 U.S.C.A. § 5107(a).  A well-grounded claim is one that is 
plausible, meritorious on its own or capable of 
substantiation.  See Murphy v. Derwinski, 1 Vet. App. 78 
(1990).  In order for a claim to be well grounded, there must 
be competent evidence of (1) a current disability (a medical 
diagnosis); (2) incurrence or aggravation of a disease or 
injury in service (lay or medical evidence); (3) a nexus 
between the in-service injury or disease and the current 
disability (medical evidence).  Caluza v. Brown, 
7 Vet. App. 498 (1995).

Analysis

After reviewing the record, the Board concludes that the 
veteran's claim of entitlement to service connection for an 
acquired psychiatric disorder, to include PTSD, is well 
grounded.  38 U.S.C.A. 5107(a). This is based on an April 
1998 diagnosis of PTSD by a VA psychiatrist, and on the 
veteran's own statements regarding her alleged stressors.  
While not necessarily conclusive as to her claim, the Board 
finds that this evidence is sufficient to justify a belief by 
a fair and impartial individual that the veteran's claim of 
entitlement to service connection for an acquired psychiatric 
disorder, to include PTSD, is plausible and thus well 
grounded.  Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).  

The Board wishes to make it clear that the veteran's 
statements are presumed to be true only for the limited 
purpose of establishing whether the claim is well grounded.  
See Chipego v. Brown, 4 Vet. App. 102, 104-105 (1993); see 
also Swann v. Brown, 5 Vet. App. 229, 233 (1993) [ a 
diagnosis "can be no better than the facts alleged by the 
appellant"].

The Board further finds that, the claim being well grounded, 
VA has a duty to assist the veteran in the development of 
facts pertinent to her claim under 38 U.S.C.A. § 5107(b).  In 
accordance with this duty, and for the reasons and bases set 
forth in the remand portion of this decision, the Board 
believes that further development is necessary before the 
veteran's claim can be properly adjudicated.


ORDER

The veteran's claim of entitlement to service connection for 
an acquired psychiatric disorder, to include PTSD, is well 
grounded.  To this extent only, the appeal is granted.


REMAND

In the interest of clarity, the Board will separately address 
the veteran's claims.

Acquired psychiatric disorder, to include PTSD

As noted above, the veteran has submitted a well-grounded 
claim of entitlement to service connection for an acquired 
psychiatric disorder, to include PTSD.  Thus, VA has a duty 
to assist the veteran in the development of facts pertinent 
to her claim under 38 U.S.C.A. § 5107(b).

As discussed above, service connection for PTSD requires 
medical evidence establishing a diagnosis of the condition, 
credible supporting evidence that the claimed in-service 
stressor(s) actually occurred, and a link, established by 
medical evidence, between current symptomatology and the 
claimed in-service stressor(s).  See 38 U.S.C.A. § 1154(b); 
38 C.F.R. § 3.304(d), (f).  The evidence necessary to 
establish the incurrence of a recognizable stressor during 
service to support a claim of service connection for PTSD 
will vary depending on whether the veteran "engaged in 
combat with the enemy."  Zarycki, 6 Vet. App. at .  In this 
case, there is no evidence that the veteran was engaged in 
combat with the enemy or that her claimed stressors are 
related to such combat.  Therefore, there must be independent 
evidence to corroborate the veteran's statement as to the 
occurrence of the claimed stressors.  Doran, 6 Vet. App. at 
288-89 (1994).

The veteran essentially contends that she has an acquired 
psychiatric disorder, to include PTSD, due to an alleged 
sexual assault that occurred in service and as a result of 
being given LSD during service.

In Patton v. West, 12 Vet. App. 272 (1999), the Court held 
that special consideration must be given to claims for PTSD 
based on sexual assault.  In particular, the Court held that 
the provisions in M21-1, Part III, 5.14(c), which addresses 
PTSD claims based on personal assault are substantive rules 
which are the equivalent of VA regulations and must be 
considered.  See also YR v. West, 11 Vet. App. 393, 398-99 
(1998).  Paragraph 5.14c of these provisions states that, in 
cases of sexual assault, development to alternate sources for 
information is critical.  The provision then provides an 
extensive list of alternative sources competent to provide 
credible evidence that may support the conclusion that the 
event occurred, to include medical records, military or 
civilian police reports, reports from crisis intervention 
centers, testimonial statements from confidants, and copies 
of personal diaries or journals.  These provisions further 
note that behavior changes that occurred at the time of the 
incident may indicate the occurrence of an in-service 
stressor based on personal assault.  See M21-1, Part III, 
5.14(c)(8).

In this case, the veteran's service medical records reflect 
that she was admitted to the Bethesda Naval Hospital in 
November 1950 after exhibiting "circumstantial, silly, and 
obviously evasive" behavior.  In a report of a Medical Board 
survey dated in February 1951, it was noted that the 
veteran's adjustment to service had been satisfactory until 
two weeks prior to her admission, at which time she had been 
out on a date and had been involved in a "physical 
squabble" with her date in an automobile.  The veteran 
indicated that following this incident, she went into a fit 
of depression and slashed her wrists.  The veteran also 
indicated that she later witnessed a man standing outside her 
barracks looking at her through the window, which she 
reported to the military authorities.  A subsequent 
investigation apparently revealed no evidence of someone 
standing outside her window.  The veteran indicated that she 
then went on another date in which she found out that the man 
was married.  She then wrote him a letter demanding that he 
pay her $7.00, which resulted in an investigation by the 
Office of Naval Intelligence.  The results of this 
investigation apparently led to the veteran's hospitalization 
in November 1950.

Based on the information described above, the Board believes 
that there is corroborative evidence of record showing that 
the veteran was involved in some sort of physical altercation 
while on a date during service.  There also appears to be 
evidence of behavioral changes at approximately the time of 
the incident which are consistent with the occurrence of the 
alleged in-service stressor.  However, the precise nature of 
the reported "physical squabble" remains unclear, as the 
veteran has at times reported that she was sexually harassed 
during service, and on other occasions she has indicated that 
she was either sexually assaulted or raped.  

Because there is still some ambiguity regarding the precise 
nature of this incident, the Board believes that further 
development is warranted in order to determine the exact 
nature of the veteran's in-service stressor.  Specifically, 
the Board finds that the RO should attempt to obtain any 
documentation that was promulgated as a result of the 
investigation by the Office of Naval Intelligence that led to 
the veteran's hospitalization.  The RO should also attempt to 
obtain any other pertinent military police reports that may 
be available surrounding these incidents.  See M21-1, Part 
III, 5.14(c).

Furthermore, the Board notes that the provisions in M21-1, 
Part III, 5.14(c) also indicate that in a claim for PTSD 
based on physical assault, a stressor development letter 
specifically tailored for personal assault cases should be 
sent to the veteran.  See M21-1, Part III, 5.14(b)(3)(a), 
5.14(c)(6), (c)(7); see also Patton.  It appears that such a 
letter was sent to the veteran in April 1997, but that she 
failed to respond with the requested information.  However, 
although she failed to respond to that letter, it appears 
that the veteran did submit an additional written statement 
in November 1998 in which she further discussed these events.  
For this reason, the Board finds that while this case is in 
remand status, the veteran should be provided with another 
stressor development letter specifically tailored for 
personal assault cases.  The RO should ensure that the 
veteran is requested to provide further detail regarding her 
alleged in-service assault.

The Board notes in passing that although it believes that the 
veteran should be afforded an additional opportunity to 
provide further information relative to the claimed 
stressors, the Board cautions the veteran concerning her own 
responsibility to cooperate with VA in this matter.  The 
Court has held that "[t]he duty to assist is not always a 
one-way street.  If a veteran wishes help, [s]he cannot 
passively wait for it in those circumstances where [s]he may 
or should have information that is essential in obtaining the 
putative evidence."  Wood v. Derwinski, 1 Vet. App. 190, 193 
(1991).

The record reflects that in March 1999, the veteran was 
provided with a psychological examination in order to 
determine whether she has PTSD related to her service.  The 
VA psychologist concluded that the veteran did not meet the 
diagnostic criteria for PTSD.  Rather, the VA psychologist 
concluded that her symptoms were consistent with an anxiety 
disorder and a personality disorder, with schizoid, 
histrionic, and borderline features.  In reaching this 
conclusion, the VA psychologist reviewed the veteran's claims 
folder and noted a previous psychological evaluation he had 
performed in May 1998 in which he concluded that the veteran 
did not report sufficient symptoms to support a diagnosis of 
PTSD.  The VA psychologist also cited to a 
neurolopsychological evaluation that had been performed by 
another VA psychologist in July 1998, the results of which 
had been within normal limits.  

In reviewing the veteran's claims folder, the Board was 
unable to locate either the May 1998 psychological evaluation 
or the July 1998 neuropsychological evaluation.  The only 
evidence of record that any such evaluations occurred are two 
April 1998 clinical notes, in which it is noted that the 
veteran had been scheduled to undergo evaluations by these 
two psychologists.  The reports of these evaluations, 
however, do not appear to have been associated with the 
claims folder.  In fact, the only thorough VA examination 
from that period that does appear to be associated with the 
claims folder is the report of the April 1998 VA psychiatric 
examination, in which the psychiatrist concluded that the 
veteran had probable PTSD related to military events.  It 
does not appear that the psychologist who evaluated the 
veteran in May 1999 discussed the findings of the April 1998 
psychiatrist in his report.

In light of the conflicting findings reported in the 
veteran's April 1998 and May 1999 evaluations, the Board 
finds that another VA psychiatric examination would be 
helpful in reconciling the conflicting diagnoses of record 
and in determining whether or not the veteran in fact has 
PTSD.

The Board notes that prior to the scheduling of another VA 
examination, the RO should ensure that all of the veteran's 
VA treatment records and examination reports have been 
obtained and associated with the claims folder, including 
reports of the April 1998 and July 1998 evaluations noted 
above.

The residuals of exposure to LSD

As discussed above, the veteran is also seeking entitlement 
to service connection for claimed residuals of LSD exposure.  
In essence, she has stated that she was treated with LSD 
during service and that she has various sequelae from such 
treatment.

As discussed in the Introduction, the veteran's claim was 
denied in an unappealed October 1975 VA rating decision.  
Under the law and VA regulations cited above, new and 
material evidence is required in order to reopen this claim.    

In Bernard v. Brown, 4 Vet. App. 384, 394 (1993), the Court 
of Appeals for Veterans Claims held that before the Board 
addresses in a decision a question that has not been 
addressed by the RO, it must consider whether the claimant 
has been given adequate notice of the need to submit evidence 
or argument, an opportunity to submit such evidence or 
argument, an opportunity to address the question at a 
hearing, and whether the claimant has been prejudiced by 
being denied those opportunities.  In this instance, in order 
to avoid potential prejudice to the veteran, the Board 
believes that a remand of this case is appropriate so the 
veteran's claim can be fully adjudicated and developed as an 
attempt to reopen a previously denied claim for service 
connection, rather than as an original claim.

Accordingly, this case is remanded for the following:

1.  The RO should contact the veteran and 
obtain the names and addresses of any 
health care providers who have recently 
treated the veteran for her claimed 
psychiatric disorder.  With any necessary 
authorization from the veteran, the RO 
should attempt to obtain copies of any 
pertinent treatment records identified by 
the veteran in response to this request 
which have not been previously secured.  
In particular, the RO should obtain 
copies of the April 1998 VA psychological 
evaluation and July 1998 
neuropsychological evaluation of the 
veteran.

2.  The veteran should be asked to 
provide any additional information 
possible regarding the stressful events 
claimed to have caused PTSD and to 
identify potential alternative sources 
for supporting evidence regarding the 
stressors she alleges occurred in 
service.  In particular, the veteran 
should provide as much detailed 
information as possible including the 
dates, places, names of people present, 
and detailed descriptions of events.  The 
veteran is advised that this information 
is necessary to obtain supportive 
evidence of the stressful events and that 
she must be as specific as possible 
because without such details an adequate 
search for verifying information can not 
be conducted. The RO should then request 
any supporting evidence from alternative 
sources identified by the veteran and any 
additional alternative sources deemed 
appropriate.  In particular, the RO 
should attempt to obtain any available 
documentation pertaining to the 
investigation of the Office of Naval 
Intelligence in November 1950, as well 
any pertinent military police records 
that may be available.  To the extend 
feasible, the RO should also attempt to 
obtain any available evidence indicating 
whether or not the veteran was given LSD 
during service.

3.  Following completion of the 
foregoing, the RO should review the 
evidence of record and ensure that it has 
fully complied the provisions of VA 
Adjudication Manual M21-1, Part III, 5.14 
(c) (April 30, 1999).  The RO must then 
prepare a report detailing the nature of 
any stressors which it has determined are 
established by the record.  This report 
is then to be added to the claims folder.

4.  The RO should then schedule the 
veteran for a VA psychiatric examination.  
This examination should be conducted by a 
psychiatrist who has not previously 
examined, evaluated or treated the 
veteran.  The claims folder and a copy of 
this remand must be provided to the 
examiner for review prior to the 
examination.  The examining psychiatrist 
should determine the nature and extent of 
the veteran's current psychiatric 
disorder(s), if any, and should reconcile 
to the extent possible any discrepancies 
that may exist between these and past 
diagnoses, in particular any diagnoses 
rendered during service, in light of the 
veteran's entire medical history.  As to 
each psychiatric disorder found, the 
psychiatrist should offer an opinion as 
to whether it at least as likely as not 
that such disability is etiologically 
related to service.  If a diagnosis of 
PTSD is made, the specific stressor(s) to 
which it is related must be set forth.  
Any and all opinions expressed must be 
accompanied by a complete rationale.  The 
report of the examination should be 
associated with the veteran's claims 
folder.

5.  Thereafter, the RO should 
readjudicate the veteran's claim of 
entitlement to service connection for an 
acquired psychiatric disorder, to include 
PTSD.  The RO should also adjudicate the 
issue of whether new and material 
evidence has been submitted to reopen a 
claim of entitlement to service 
connection for the residuals of LSD 
exposure.  If the benefits sought on 
appeal remain denied, in whole or in 
part, the veteran and her representative 
should be furnished with a Supplemental 
Statement of the Case and given the 
opportunity to respond thereto.  
Thereafter, the case should be returned 
to the Board, if in order.

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. 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.



		
	Barry F. Bohan
	Member, Board of Veterans' Appeals