Citation Nr: 0029531	
Decision Date: 11/09/00    Archive Date: 11/16/00

DOCKET NO.  98-09 634	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little 
Rock, Arkansas


THE ISSUE

Entitlement to service connection for post-traumatic stress 
disorder.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Stephen Eckerman, Associate Counsel 


INTRODUCTION

The veteran served on active duty from March 1968 to March 
1971.  In addition, he served from April 1975 to February 
1976; he received an "other than honorable" discharge for 
this period of service. 

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 1998 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
No. Little Rock, Arkansas, which denied the veteran's claim 
seeking entitlement to service connection for post-traumatic 
stress disorder (PTSD).  

In his appeal form (VA Form 9), received in June 1998, the 
veteran indicated that he desired a hearing before a Member 
of the Travel Board.  However, in a statement received by the 
RO in July 1998, the veteran stated that he wished to 
withdraw his request for a hearing.  See 38 C.F.R. 
§ 20.702(e) (1999).  Accordingly, the Board will proceed 
without further delay.


REMAND

The claims file includes diagnoses of PTSD in medical reports 
which appear to link such PTSD to events during service.  As 
the claimed stressors have not been verified, and further 
development, to include solicitation of a stressor statement 
and an effort to verify the claimed stressors, is warranted.  
38 U.S.C.A. § 5107.

The Board notes that a recent decision by the United States 
Court of Appeals for Veterans Claims (known as the United 
States Court of Veterans Appeals prior to March 1, 1999) 
(hereinafter, "the Court"), Patton v. West, 12 Vet. 
App. 272 (1999), clearly alters the landscape in the 
adjudication of claims of service connection for PTSD based 
upon personal assault.  In Patton, the Court emphasized that 
statements contained in prior decisions indicating that 
"something more than medical nexus evidence is required to 
fulfill the requirement for 'credible supporting evidence'" 
of a claimed stressor and that "[a]n opinion by a mental 
health professional based on a post-service examination of 
the veteran cannot be used to establish the occurrence of the 
stressor," were made in the context of discussing PTSD 
diagnoses other than those arising from personal assault.  
Id. at 280; see also Cohen v. Brown, 10 Vet. App. 128 (1997); 
Moreau v. Brown, 9 Vet. App. 389 (1996).  With regard to 
personal assault cases, the Court pointed out that "VA has 
provided special evidentiary development procedures, 
including the interpretation of behavior changes by a 
clinician and interpretation in relation to a medical 
diagnosis."  Id. (citing VA Adjudication Procedure Manual 
M21-1 (M21-1), Part III, 5.14c (8), (9)).  The Court has also 
held that these provisions of M21-1, which provide special 
evidentiary procedures for PTSD claims based on personal 
assault, are substantive rules that are the equivalent of VA 
regulations.  See YR v. West, 11 Vet. App. 393 (1998); Cohen 
v. Brown, 10 Vet. App. 128 (1997).  

Specifically, M21-1, Part III, 5.14c subparagraph (8) 
(redesignated PartVI, paragraph 11.38b(2)), provides that 
"[i]f the military record contains no documentation that a 
personal assault occurred, alternative evidence might still 
establish an inservice 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): visits to a medical or counseling clinic or dispensary 
without specific diagnosis or specific ailment; changes in 
performance and performance evaluations; increased disregard 
for military or civilian authority; increased interest in 
tests for Human Immunodeficiency Virus (HIV) or sexually 
transmitted diseases; and breakup of a primary relationship.  
Subparagraph (9) provides that "[r]ating boards may rely on 
the preponderance of evidence to support their conclusions 
even if the record does not contain direct contemporary 
evidence.  In personal assault claims, secondary evidence 
which documents such behavior changes may require 
interpretation in relationship to the medical diagnosis by a 
VA neuropsychiatric physician."  

The Court in Patton went on to note that the manual 
improperly appeared to require that the existence of the in-
service stressor be shown by a preponderance of evidence.  
Any such requirement would be inconsistent with the so called 
equipoise doctrine set forth in 38 U.S.C.A. § 5107(b) where 
the benefit of the doubt is given to the claimant unless the 
evidence preponderates against the claim.  

Under the circumstances, the Board has determined that a 
remand is required for the veteran to be given the 
opportunity to submit a full and detailed list of: 1) any 
evidence of behavioral changes which may support his claim; 
and 2) a list of fellow Marines and/or civilians who may be 
able to provide lay statements as to either the occurrence of 
the claimed stressor, or changes in the veteran's observed 
behavior (the Board stresses that under M21-1, Part VI, 
11.38b(2) the changes in his observed behavior must have been 
witnessed "at the time of the claimed stressors" (i.e., 
reasonably close in time to the claimed stressors)).  The RO 
should also attempt to obtain the veteran's personnel file.  
Finally, the RO should attempt to verify the service of M.L. 
-- from whom the RO received a lay statement in February 1999 
-- to include obtaining M.L.'s personnel file, in order to 
attempt to verify his claim that he was in boot camp with the 
veteran.  

In addition, a review of the transcript of the veteran's 
hearing, held in August 1998, shows that he reported that his 
claim for benefits had been denied by the Social Security 
Administration (SSA).  The hearing officer indicated that an 
attempt would be made to obtain the SSA's records, and in 
August 1998, the RO sent the SSA a request for its records.  
However, there is no record of a response.  Under the 
circumstances, on remand, the RO should make another attempt 
to obtain these records.

Finally, the Board notes that although M21-1 provides that 
evidence of changes of behavior that occurred at the time of 
the incident may indicate the occurrence of an in-service 
stressor, such evidence may need interpretation by a 
clinician.  See M21-1, Part VI, 11.38b(2).  In this case, the 
claims file does not appear to contain a psychiatric 
examination based on a review of the veteran's claims file.  
Furthermore, the medical evidence shows that the veteran has 
received a number of competing diagnoses, to include PTSD, 
major depression, anxiety, alcohol abuse, and several forms 
of substance abuse.  Therefore, following the requested 
development, an opinion should be obtained from a VA 
psychiatrist as to whether the veteran has PTSD, and if so, 
whether it is related to his service, as outlined below.

Based on the foregoing, additional development is necessary 
and this case is REMANDED to the RO for the following action:

1.  The RO should contact the veteran and 
request that he identify independently 
verifiable evidence of behavioral changes 
which occurred at the time of the alleged 
stressor, and to provide a list of any 
fellow Marines and/or civilians, and 
their addresses, who may be able to 
provide lay statements as to the 
occurrence of the claimed stressor, 
and/or changes which they observed in his 
behavior at the time of the claimed 
stressor or shortly thereafter.  

2.  The RO should contact the Social 
Security Administration.  Copies of any 
decisions awarding or denying such 
benefits should be obtained and 
associated with the claims folder.  
Supporting medical documentation utilized 
in rendering any decision relating to 
such benefits should also be obtained for 
inclusion in the veteran's claims folder.

3.  The RO should ensure that its efforts 
conform to all relevant provisions of 
Manual 21-1 regarding development in PTSD 
claims based on personal assault, to 
include undertaking all reasonable 
efforts to locate any witnesses 
identified, and, if located, to obtain 
statements from them regarding their 
knowledge of the veteran's alleged 
stressors.  

4.  The RO should contact the U.S. Marine 
Corps and attempt to obtain copies of the 
veteran's personnel records.  The RO 
should also attempt to obtain the 
discharge (DD Form 214) and the personnel 
file of M.L.  If obtaining these records 
is, for some reason, not possible -- for 
example, without M.L.'s having made a 
claim himself for VA benefits or without 
his having authorized the RO to obtain 
his records -- the RO should note that in 
the claims file and should carry out 
whatever procedures it has in place, if 
any, for verifying that M.L. served with 
the veteran.  

5.  Following the development outlined in 
the first four paragraphs of this REMAND, 
the RO should schedule the veteran for a 
VA psychiatric examination to determine 
whether the veteran has PTSD under the 
criteria as set forth in DSM-IV.  The 
veteran should be informed of the 
potential consequences of his failure to 
report for the examination.  If the 
veteran is found to have PTSD, the 
examiner should report whether it is at 
least as likely as not that the veteran's 
PTSD is a result of his service.  The RO 
should provide the examiner with a 
summary of any verified stressor(s), as 
well as the all evidence pertaining to 
changes in behavior at the time of the 
claimed stressor(s).  The claims file 
must be provided to the examiner in 
connection with the examination.

6.  After undertaking any additional 
development deemed appropriate, the RO 
should review the record and ensure that 
all of the directives of this remand have 
been carried out in full.  If not, 
corrective action must be taken.  38 
C.F.R. § 4.2 (1999); see also Stegall v. 
West, 11 Vet. App. 268 (1998).  Then the 
RO should readjudicate the issue of 
service connection for PTSD considering 
all of the evidence of record.  The RO's 
decision should include a discussion of 
the probative value of any inservice 
history of disciplinary actions, as well 
as any evidence of a change of behavior 
at the time of the incident which may 
corroborate the claimed stressor(s), as 
contemplated in M21-1.

If the benefit sought is not granted, the veteran and his 
representative should be furnished a supplemental statement 
of the case, and be afforded the applicable opportunity to 
respond before the record is returned to the Board for 
further review.

The purpose of this REMAND is to obtain additional 
development, and the Board does not intimate any opinion as 
to the merits of the case, either favorable or unfavorable, 
at this time.  The veteran is free to submit any additional 
evidence 
he desires to have considered in connection with his current 
appeal.  No action is required of the veteran unless or until 
he is notified.



		
	KATHLEEN K. GALLAGHER
	Acting Veterans Law Judge
	Board of Veterans' Appeals



 


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