Citation Nr: 0029610 Decision Date: 11/09/00 Archive Date: 11/16/00 DOCKET NO. 98-17 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his mother ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The veteran served on active duty from April 1961 to July 1964. This matter is before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a July 1998 rating determination by the St. Petersburg, Florida, Regional Office (RO). FINDING OF FACT The veteran has submitted competent evidence of a plausible claim of service connection for PTSD based on sexual assaults. CONCLUSION OF LAW The veteran's claim of service connection for PTSD based on sexual assaults is well grounded. 38 U.S.C.A. § 5107(b) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question in any claim is whether the veteran has met his burden of submitting evidence sufficient to justify a belief that his claim of service connection for PTSD based on sexual assaults in service is well grounded. In order for him to meet this burden, he must submit evidence sufficient to justify a belief that his claim is plausible. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Service connection for PTSD requires medical evidence establishing a 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. 38 C.F.R. § 3.304(f) (1999); Cohen v. Brown, 10 Vet. App. 128 (1997). Under the new Cohen criteria, the veteran has met his burden of submitting a well-grounded PTSD claim because he has submitted medical evidence of a current disability; lay evidence (presumed to be credible to establish well- groundedness) of an inservice stressor, which in a PTSD case is the equivalent of in-service incurrence or aggravation; and medical evidence of a nexus between service and the current PTSD disability, in the form of diagnoses by VA medical personnel. Cohen v. Brown, 10 Vet. App. 128, 137 (1997), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table); Heuer v. Brown, 7 Vet. App. 379, 384 (1995); and King v. Brown, 5 Vet. App. 19, 21 (1993). Because the claim is well grounded, the VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999); EF v. Derwinski, 1 Vet. App. 324 (1991); Littke v. Derwinski, 1 Vet. App. 90 (1990). The incident, which was generally claimed to be the veteran's principal stressor, and, indeed, was often the only stressor mentioned by the veteran at the time of psychiatric evaluation and treatment, involved an alleged sexual assault. A March 1998 statement from the veteran, relates in detail the various incidents of sexual assault in service by several males, all of whom he has named. The veteran also provided similar testimony at a travel board hearing in July 2000. He stated that one of his duties was as a messenger and that he was assaulted late one night while delivering a message to his Lieutenant. The veteran stated that many times during the rest of his tour of duty at sea he was "caught" and sexually assaulted. He stated that he began drinking heavily thereafter. He stated that he later saw two of his assailants handcuffed to a bunk in their quarters and assumed that it was due to some misconduct. He never saw them again and the harassment stopped after that. He testified that the incidents could not be verified because he did not report them to anyone at the time they occurred. However, he stated that soon after he sought treatment from a private physician in Florence, South Carolina. Post-service records beginning in 1997 show psychiatric evaluation and reflect that the veteran began reporting allegations of sexual assault in service. More recent medical evidence dated in June 2000 reflects a diagnosis of PTSD related to sexual harassment and abuse. In view of the evidence which shows that the veteran asserts having been sexually assaulted during service and the medical opinion that reflects a current diagnosis of PTSD directly related to his active duty naval experiences, the veteran's claim of service connection for PTSD based on sexual assaults in service is well grounded. King v. Brown, 5 Vet. App. 19 (1993); Caluza v. Brown, 7 Vet. App. 498 (1995). ORDER The veteran's claim of service connection for PTSD is well grounded. To this extent only, the appeal is granted. REMAND 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). 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 order of priority in terms of the necessity of carrying out the instructions completely. The veteran contends that he developed PTSD as a result of having been sexually assaulted while in service. The record contains diagnoses of PTSD, most recently in June 2000, as well as statements and testimony concerning inservice stressors. Most, if not all, of the diagnoses appears to be based on inservice stressors reported by the veteran at the time of examinations. In essence, the disputed matter concerning service connection for PTSD relates to the sufficiency of the evidence corroborating the occurrence of an adequate "stressor" during the veteran's service. 38 C.F.R. § 3.304(f) (1999). While a diagnosis of PTSD has been recorded, the record still contains inadequate information pertaining to the documentation of events constituting a stressor for PTSD. Service medical records and personnel documents do not show psychiatric treatment in service and do not corroborate the veteran's statements of sexual assaults in service. In this regard, the Board notes that the evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran was engaged in combat with the enemy. Where, as is the case here, the veteran did not engage in combat or the claimed stressor is non combat- related, the record must contain service records which corroborate the veteran's testimony as to the occurrence of the claimed stressor. Zarycki v. Brown, 6 Vet. App 91, 98 (1993). During the pendency of the veteran's appeal, the Court issued a decision in Patton v. West, in which it noted that in the particular case of claims of PTSD due to a personal assault, VA has established special procedures for evidentiary development. Patton v. West, 12 Vet. App. 272, 277 (1999). These procedures, which became effective in February 1996, take into account the fact that since personal assault is an extremely sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of inservice trauma may find it difficult to produce evidence to support the occurrence of the stressor. These procedures thus acknowledge the difficulty veteran's face in establishing the occurrence of the stressor through standard evidence, and the need for development of alternate sources of evidence. See VA Adjudication Procedure Manual M21-1 (hereinafter Manual M21-1), Part III, paragraph 5.14c (Feb. 20, 1996) (substantially enlarging on the former Manual M21- 1, Part III, paragraph 7.47c(2) (Oct. 11, 1995)). Alternate sources that may provide credible evidence of an in-service personal assault include medical or counseling treatment records following the incident, military or civilian police reports, reports from crisis intervention or other emergency centers, statements from confidants or family, copies of diaries or journals, or behavior changes documented or observed at the time of the incident, such as obsessive behavior at the time of the incident, pregnancy tests, increased interest in test for sexually transmitted diseases, termination of primary relationships, or alcohol and drug abuse. Evidence that documents any such behavioral changes may require interpretation by a VA neuropsychiatric physician to determine whether such evidence bears a relationship to the medical diagnoses. See M21-1, Part III, para. 5.14(c)(9). Furthermore, these provisions recognize that the standard PTSD stressor letter may be inappropriate for this type of PTSD claim, and thus state that if the claimed stressful incident is a personal assault, a stressor development letter specifically tailored for personal assault cases should be sent to such veterans. See M21-1, Part III, para. 5.14(c)(6). In addition, the Court in Patton noted that in two places the MANUAL M21-1, Part III, 5.14(c)(3) and (9), appears improperly to require that the existence of an in-service stressor be shown by "the preponderance of the evidence" and holds that any such requirement, however, would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b). Therefore, the evidence need only be in relative equipoise to prevail on the question of the existence of the stressor. The Court has held that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault are substantive rules which are the equivalent of VA regulations, and are binding on VA. Cohen, supra; YR v. West, 11 Vet. App. 393, 398-99 (1998); Patton, 12 Vet. App. at 272. Thereafter, a review of the clinical diagnosis of PTSD should be undertaken in light of the difficulties encountered in confirming a stressor. The diagnostic conclusions of record were based on information received from the veteran himself concerning experiences during military service. The VA is not obligated to accept diagnoses based on uncorroborated information. Wilson v. Derwinski, 2 Vet.App. 614 (1992) and Wood v. Derwinski, 1 Vet.App. 190 (1991). Consequently the Board finds that, following completion of the additional development requested herein, if the RO finds that there is credible supporting evidence that a claimed in-service stressor actually occurred, the complete record should again be reviewed by a psychiatrist. If PTSD is found, the manifestations thereof should be described in detail and the stressor(s) should be identified. Also, potentially relevant medical records have not been obtained by the RO. It appears that he applied for Social Security Administration (SSA) benefits. Therefore, the RO should make arrangements to obtain these records on remand, as the duty to assist involves obtaining relevant medical reports where indicated by the facts and circumstances of the individual case. Such duty extends to obtaining records from other Government agencies such as the SSA. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The veteran has also submitted two cassette tapes, which should be reviewed by the RO in the course of this remand. Therefore, in order to give the veteran every consideration with respect to the present appeal and to accord the veteran due process of law, the Board finds that further development with respect to the issue on appeal in this case is warranted. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO and any physician to whom this case is assigned for an examination and/or a statement of medical opinion must read the entire remand, to include the explanatory paragraphs above the numbered instructions. 2. The veteran should be asked to provide information regarding all sources of treatment subsequent to service, to include particularly records of treatment received at Wentworth Douglas Hospital, Frisbee Memorial Hospital in Rochester, Mid-Maine Medical Center, the VA Medical Center in Tuscaloosa and from the private physician in Florence, South Carolina. The RO should also obtain the veteran's complete service personnel records. All such evidence should be associated with the claims file. 3. The RO should make the necessary arrangements to obtain a copy of any SSA decision denying or granting disability benefits to the veteran. Obtain all the records from the SSA that were used in considering the veteran's claim for disability benefits, including any reports of examinations or treatment. If these records are duplicates of those already on file, that fact should be annotated in the claims folder. Any other records should be associated with the claims folder. 4. The RO should provide the veteran with a personal assault letter and questionnaire to be filled out and returned, in accordance with M21-1, Part III, § 5.14(c), in order to obtain as much information as possible about the personal assault incident(s) in service, to include a detailed description of the pertinent incident(s), with all pertinent dates and locations, as well as the complete names and unit designations of the assailants and others who may have knowledge of the incident(s). The RO should afford the veteran the opportunity to submit any additional evidence in support of his claim for service connection for PTSD, to include statements from relatives. He 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 he 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 he 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, including military police records, if the veteran has provided sufficiently detailed information to make such request feasible. 5. 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). 6. 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. 7. If the RO determines that there is credible supporting evidence that a claimed inservice stressor actually occurred, the veteran should be referred for a VA psychiatric examination to ascertain the nature of all current psychiatric pathology. All indicated tests and studies should be conducted and all findings should be reported in detail. If the veteran is found to have PTSD, the symptoms and other factors which support the diagnosis should be specifically itemized. The examiner should comment on the sufficiency of the stressor. The examiner should also provide a score on the Global Assessment of Functioning Scale relative to impairment due to PTSD, if diagnosed, and discuss the import of that score relative to the veteran's social and industrial adaptability. The claims folder must be provided to and reviewed by the examiner as part of the examination. 8. After completion of the above, the veteran's claim should then be readjudicated with consideration of all pertinent law, regulations, Court decisions and M21-1, Part III, 5.14(c). The RO should readjudicate the veteran's claim with consideration given to all of the evidence of record. to include the cassette tape evidence submitted by the veteran as well as any additional medical records obtained on remand. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished 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 Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. 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. G. H. Shufelt Member, Board of Veterans' Appeals Error! Not a valid link. - 11 -