Citation Nr: 0027142 Decision Date: 10/12/00 Archive Date: 10/19/00 DOCKET NO. 94-06 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include major depression, eating disorder, dysthymic disorder, an adjustment disorder, and post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: N. Albert Bacharach, Jr., Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The appellant served on active duty from December 1972 to July 1974. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of February 1993 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). In the February 1993 decision, the RO denied the appellant's claim for entitlement to service connection for "major depression." The Board, by means of an April 1996 decision, determined that entitlement to service connection for an acquired psychiatric disorder, to include major depression, was not warranted. The veteran appealed the Board's April 1996 decision to the United States Court of Veterans Appeals (Court) (now known as the United States Court of Appeals for Veterans Claims). While the case was pending at the Court, the Office of General Counsel for VA, who represents the Secretary of this Department in legal matters before the Court, and the appellant's representative filed a joint motion requesting that the decision by the Board be vacated, and the case remanded for additional development and readjudication. The bases for the joint remand were that the Board had not considered VA inpatient records, dated from approximately June 1993 to August 1993, which could be determinative of the appellant's claim (see Bell v. Derwinski, 2 Vet. App. 611 (1992)), and in order for the Board to address the issues of entitlement to service connection for an eating disorder and adjustment disorder, which had been diagnosed. The Court granted the motion of the parties in a December 12, 1997 order, and the April 1996 Board decision was vacated. The case was returned to the Board for compliance with the directives that were stipulated in the joint remand. Subsequently, the Board, in June 1998, pursuant to a remand decision, sought to further develop additional evidence, to include requesting that the RO seek to obtain certain medical records, both VA and private. FINDING OF FACT The claim for service connection for an acquired psychiatric disorder, to include major depression, eating disorder, dysthymic disorder, an adjustment disorder, and PTSD is plausible. CONCLUSION OF LAW The claim for service connection for an acquired psychiatric disorder, to include major depression, eating disorder, dysthymic disorder, an adjustment disorder, and (PTSD) is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question that must be resolved in this appeal is whether the veteran has presented evidence that her claim is well grounded; that is, that the claim is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). 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) (West 1991) to assist the claimant in developing the facts pertinent to the claim. 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). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a preexisting injury or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). A well-grounded service connection claim for PTSD has been submitted when there is "[1] medical evidence of a current [PTSD] disability; [2] lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a PTSD case is the equivalent of in-service incurrence or aggravation; and [3] medical evidence of a nexus between service and the current PTSD disability." Cohen v. Brown, 10 Vet. App. 128, 137 (1997). The determination of the sufficiency (but not the existence) of a stressor is subsumed in the PTSD diagnosis, and is exclusively a medical determination for mental-health professionals, who are "experts" and "presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis." Cohen, supra, at 140. 38 C.F.R. § 3.304(f) states that service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. During the course of the appeal 38 C.F.R. § 3.304(f) was revised. 38 C.F.R. § 3.304(f) now provides that service connection for PTSD 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. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. The effective date of the revision is March 7, 1997. Where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant should apply unless Congress provided otherwise or permitted the Secretary to do otherwise. Karnas v. Derwinski, 1 Vet.App. 308 (1991). In this regard, the veteran essentially claims that she has psychiatric problems, to include PTSD as a result of having been touched by another female soldier during her period of basic training. See transcript of hearing, dated in June 1994, at page 2. She added that she did not report this incident to supervising personnel. The veteran also testified in June 1994 that while at Fort Polk she was sexually harassed by fellow male soldiers and, in addition, her husband at that time, also a soldier, beat her and sexually molested her. She also stated that she was taking Valium in 1974 during her period of service for nervousness, but a review of the service medical records fails to confirm this assertion. Also of record is a transcript of a hearing which was conducted in May 2000. At this hearing the veteran testified that she was humiliated by a drill Sergeant who placed her into a "balloon platoon" due to her being two pounds over a weight restriction. In addition, as was mentioned in the course of her 1994 hearing, the veteran claimed to have been sexually harassed by a fellow female soldier. She also added that she began to binge and purge as a result of her weight- related concerns, which led to her exhibiting anorexic and bulimic behavior traits. A review of the service medical records reflect no definitive diagnosis of a psychiatric disorder. The veteran was prescribed Valium in September 1972 for physical complaints. A June 1992 letter from Dr. Gharda-Ward shows that the veteran suffered from a severe and chronic mental disorder, most likely severe affective disorder and borderline personality. The letter also notes that the veteran had been seeing a Dr. Bennett since 1991. A June 1992 letter submitted from Dr. Bennett, a psychologist, shows that the veteran had been in receipt of therapy since 1991. Dysthymia or depressive neurosis was diagnosed. A VA psychiatric examination in September 1992 revealed diagnoses of major depression, recurrent and apparent borderline personality. A May 1994 letter submitted to VA from Dr. Bennett shows that the veteran was being treated for traumas she experienced during her military service, such as sexual/physical abuse and sexual harassment. It was added that these traumas significantly contributed to the veteran's documented psychiatric condition. Another statement, dated in October 1998, also from Dr. Bennett, shows that the veteran had PTSD, as well as borderline personality disorder and an eating disorder. It was added that many of the veteran's problems appeared to be directly related to her military service where she was sexually abused, experienced drug and alcohol abuse, and suffered from damaged self- esteem. Based on this evidence, the Board finds that the veteran's claim for service connection for an acquired psychiatric disorder is well grounded. ORDER The claim for service connection for an acquired psychiatric disorder, to include major depression, eating disorder, dysthymic disorder, an adjustment disorder, and post- traumatic stress disorder (PTSD) is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for an acquired psychiatric disorder is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991). Regarding the claimed PTSD, if, as in this case, it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In relation to non- combat stressors, the Court "credible supporting evidence" means that the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after- the-fact medical nexus evidence. See Cohen, supra; Moreau v. Brown, 9 Vet. App. 389 (1996); and Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The Board acknowledges that evidence corroborating the existence of a stressor need not be limited to that which is available in service department records. See Doran v. Brown, 6 Vet. App. 283, 288-291 (1994). The VA Adjudication Manual M21-1 (M21-1) provides that the required "credible supporting evidence" of a non-combat stressor "may be obtained from" service records or "other sources." M21-1, part VI. With regard to specific claims based upon personal assault, M21-1, part III, 5.14(c), provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred. Included among the sources are statements from confidants, such as fellow service members, friends, and family, and records that indicate behavior changes that occurred at the time of the incident that may indicate the occurrence of an in-service stressor. The Court in Patton v. West, 12 Vet. App. 272 (1999), has highlighted the importance of the RO following the more particularized requirements delineated in the M21-1 for personal-assault PTSD claims. M21-1 provides that 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; . . . (d) Changes in performance or performance evaluations; . . . (h) Evidence of substance abuse such as alcohol or drugs; (i) Increased disregard for military and civilian authority; (j) Obsessive behavior such as overeating or undereating; . . . (l) Increased interest in tests for HIV or sexually transmitted diseases; . . . (o) Breakup of a primary relationship. It is not clear that the RO has achieved the level of development required by the Court's holding in Patton. Thus, the Board concludes that the RO should develop and adjudicate the appellant's claim under all applicable provisions contained in the M21-1. Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995 In conjunction with the Board remand in June 1998 records from the Social Security Administration (SSA). These records show that the veteran received psychiatric treatment at private facilities from 1970 to 1984. She stated during her hearing at the RO in May 2000, that she received treatment while on active duty for a concussion and a broken nose when struck by her husband. She testified that when she had an abortion she informed the doctor that her husband had raped her. She indicated that she was seen at the VA facility in White River Junction in 1977 at which time counseling was recommended. Received in August 1977 was VA Form 10-7131 which indicates that the veteran was a patient at the White River Junction facility. The Board is of the opinion that an attempt should be made to obtain these records Accordingly, the case is REMANDED for the following: 1. The RO should furnish the veteran the appropriate release of information forms in order to obtain the records of her treatment in 1963, her hospitalization in 1970 for a suicide attempt, and the treatment records from Drs. Small (1978) and Swindell (1984), and from the Mental health Center in Houston, Texas (1983), and all current treatment records. She should be asked if she received any pertinent treatment as a dependent when married to her husband while he remained on active duty. If yes, the RO is requested to obtain these records. She should also be requested to furnish the approximate month, year and the name of the facility which treated her for the broken nose and concussion, and to identify her Reserve unit and the dates of service in the Reserve. 2. She should be furnished another opportunity to identify potential alternative sources for supporting evidence regarding the reported sexual/personal assaults during service. The RO inquiry should include possible sources listed in M21-1, part III, 5.14, to include any testimonial statements from confidants such as family members, roommates, fellow service members, or clergy. See Manual 21-1, Part III, Paragraph 5.14c(5). 3. The RO should request the National Personal Records Center (NPRC) to conduct a search for additional treatment records, to include her abortion which took place apparently in October 1973 at Darnall Hospital in Ft. Hood and her broken nose and concussion. The NPRC should be asked to furnish copies all of the veteran's personnel records. 4. The RO should request the appropriate sources to furnish all records pertaining the veteran's service in the Army Reserve. 5. The RO should obtain copies of any medical records from the VA facility in White River Junction regarding treatment in August 1977 and any current treatment records from the VA facility in Gainesville, Florida. 6. If the RO determines that there is evidence of behavior changes at the time of an alleged stressors which might indicate the occurrence of an in-service stressor, or if otherwise deemed necessary, an interpretation of such evidence by a clinician should be obtained. 7. The RO should then review the file and make a determination, as to what stressors, if any, have been verified. 8. If a stressor(s) has been verified by the RO, VA examinations should be conducted by a psychiatrist and a psychologist, to determine the nature and extent of any psychiatric disorder, to include PTSD. The claims file and a copy of this Remand are to be furnished the examiners prior to the examinations. The examiners are to be informed that only stressors verified by the RO or the Board may be used as a basis for a diagnosis of PTSD. All tests deemed necessary should be performed. If a diagnosis of PTSD is appropriate, the psychiatrist should specify the stressor(s) that caused the disorder. If psychiatric disorders, other than PTSD, are diagnosed, it is requested that the psychiatrist render an opinion as to whether it is as likely as not that any acquired psychiatric disorder diagnosed is related to military service either directly or by aggravation. A complete rational for any opinion expressed should be included in the report. 9. Thereafter, the RO should then readjudicate the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, If the claim remains denied the veteran and her representative should be issued a supplemental statement of the case and be given the reasonable opportunity to respond thereto. The case should then be returned to the Board for further appellate review. 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. ROBERT P. REGAN Veterans Law Judge Board of Veterans' Appeals