Citation Nr: 0032986 Decision Date: 12/18/00 Archive Date: 12/28/00 DOCKET NO. 95-19 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD R. L. Shaw, Counsel INTRODUCTION The veteran had active military service from August 1965 to August 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 17, 1995, rating decision by the Wichita, Kansas, Regional Office (RO) of the Department of Veterans Affairs (VA) wherein the RO held that the veteran had not submitted new and material evidence sufficient to reopen a prior claim for service connection for a psychiatric disorder that had been denied in March 1979 but not appealed, and further found that service connection was not warranted for post-traumatic stress disorder (PTSD). The veteran's appeal from the March 1995 rating decision was initially reviewed by the Board on September 26, 1996, at which time the Board held that evidence received since the March 1979 denial satisfied the applicable definition of new and material evidence, and that the claim was therefore reopened. See 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a). By the same decision, the Board remanded the appeal to the RO for additional evidentiary development and readjudication. The Board remanded the case again on March 19, 1998, for further development of the evidence pertaining to the occurrence of a stressor for PTSD during service. The RO thereafter continued its prior denial of the veteran's claim, and returned the case to the Board for further review on appeal. REMAND The law requires that, to establish service connection for PTSD, there must be (1) a current clear medical diagnosis of PTSD, (2) credible supporting evidence that the claimed inservice stressor actually occurred, and (3) medical evidence of a causal nexus between the current symptomatology and the specific claimed inservice stressor. See 38 C.F.R. § 3.304(f) (2000); Anglin v. West, 11 Vet. App. 361, 367 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997). As a result of evidentiary development performed pursuant to the first Board remand, the record now contains medical evidence of a clear current diagnosis of PTSD. (See report of June 1997 VA psychiatric examination). The remaining gap in the evidence involves the question of whether the evidence of record is adequate to establish the occurrence of an inservice stressor for PTSD. The events claimed by the veteran as stressors for PTSD consist of two alleged sexual assaults during service. The first incident was a claimed gang rape by a group of lesbians at the United States Marine Corps Recruit Depot in San Diego, California, in May or June 1966,. The second was a rape by several male servicemen at Camp Smith, Hawaii, in July 1967. According to detailed accounts of the incidents found in a lengthy statement submitted by the veteran in early 1997 and in information provided to a VA psychiatric examiner in June 1997, the veteran reported the claimed lesbian attack in 1966 to the NCO on duty that evening, but did not know whether the report had been logged in. A female adjutant took depositions, and the veteran was transferred to Hawaii for her own safety while a Judge Advocate General (JAG) investigation was being performed. She identified the lieutenant as an assistant to a Col. [redacted], the commander of her unit, which is identified in personal documents as the WMCo H & S Bn MCRDep. The veteran claimed that after her transfer she was informed by this adjutant that several women had been discharged from the service. Administrative records show that the veteran was assigned to the WMCo Camp H.M. Smith from July 1966, when she returned to San Diego. With respect to the incident in Hawaii, she claims that after the July 1967 rape by male servicemen, whose names she could not remember, she hid in a toilet stall perched on a toilet until she was found. She believes that it must have been logged in somewhere that she had been found, and that daily logs or reports should reflect that the woman's company clerk had called to report that her purse and items of clothing had been found. She states that a JAG investigation was denied. Neither of the claimed stressor incidents is documented in the record. Service medical records show that the veteran was hospitalized in July 1967 after a suicide attempt, but contains no reference to a claim of rape. The hospital report attributed the taking of an overdose to abuse of alcohol, promiscuous behavior and apprehension over her impending marriage. It was noted that an investigation was being performed. Citing the requirements set forth in VA ADJUDICATION PROCEDURE MANUAL M21-1 (M21-1) with respect to the development of the evidence to document a stressor in PTSD claims generally and in PTSD claims based on sexual assault in particular, see M21, Part VI, § 7.46 and M21-1, Part III, § 5.14, the Board remanded the case a second time on March 19, 1998, for additional evidentiary development, including, among other actions, requests to the veteran and official sources for further information and/or documentation concerning the claimed incidents as well as service department personnel and administrative records. Pursuant to the remand, the RO forwarded a request to the National Personnel Records Center (NPRC) for the materials cited by the Board, including such items as performance evaluations, records relevant to the transfer to Camp Smith, records of complaints filed by service members related to sexual assaults, and line of duty determinations or other investigatory actions pertaining to the veteran's suicide attempt. A few fragmentary items of administrative and medical documentation was received in October 1998. In response to a follow-up by the RO, the NPRC in March 2000 submitted a large quantity of administrative or personnel documents evidently constituting the veteran's 201 file. While the NPRC cover sheet accompanying the forwarded material indicates that the entire file had been mailed, the documents enclosed were limited to records relating to the veteran herself, and contained no reports relating to investigative material, line of duty determinations, or records of complaints filed by the veteran or other service members regarding sexual assaults. It cannot be determined whether these additional reports were not searched for or were searched for but not found. If the veteran's account regarding the claimed incidents is true, it is likely that the documents she has reported as being in existence might still be available if a proper search were made; that possibility has not been ruled out. The Board believes that no inference as to their availability or unavailability may be made from the mere fact that they were not included in the materials received from the NPRC to date. It is also relevant that none of the request documents makes it clear to the NPRC that the veteran served under two surnames, first her maiden name, and after May 1966 her married name. One of the requests notes that she served under the married name, but the maiden name is mentioned nowhere. While the veteran served under the same service number throughout, the extent to which the name change during service may have resulted in a misdirection of the NPRC search cannot be determined. To confuse things further, most of the search documents refer to the veteran primarily by a postservice married surname. Lastly, the investigative material requested pertained to the suicide attempt rather than to any of the alleged incidents of sexual assault. In addition, there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law eliminates the concept of a well- grounded claim, redefines the obligations of the Department of Veterans Affairs (VA) with respect to the duty to assist, and supercedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the Veterans Claims Assistance Act of 2000, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, ___ (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). With respect to procurement of records, the VCAA has revised 38 U.S.C.A. § 7103A to provide, in pertinent part, as follows: §5103A. Duty to assist claimants (a) DUTY TO ASSIST.-(1) The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary. (2) The Secretary is not required to provide assistance to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim. (3) The Secretary may defer providing assistance under this section pending the submission by the claimant of essential information missing from the claimant's application. (b) ASSISTANCE IN OBTAINING RECORDS.-(1) As part of the assistance provided under subsection (a), the Secretary shall make reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain. (2) Whenever the Secretary, after making such reasonable efforts, is unable to obtain all of the relevant records sought, the Secretary shall notify the claimant that the Secretary is unable to obtain records with respect to the claim. Such a notification shall- (A) identify the records the Secretary is unable to obtain; (B) briefly explain the efforts that the Secretary made to obtain those records; and (C) describe any further action to be taken by the Secretary with respect to the claim. (3) Whenever the Secretary attempts to obtain records from a Federal department or agency under this subsection or subsection (c), the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. (c) OBTAINING RECORDS FOR COMPENSATION CLAIMS.-In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (b) shall include obtaining the following records if relevant to the claim: (1) The claimant's service medical records and, if the claimant has furnished the Secretary information sufficient to locate such records, other relevant records pertaining to the claimant's active military, naval, or air service that are held or maintained by a governmental entity. (2) Records of relevant medical treatment or examination of the claimant at Department health- care facilities or at the expense of the Department, if the claimant furnishes information sufficient to locate those records. (3) Any other relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain. The newly enacted provisions strengthen and make explicit existing rules of law specifying that the Board is obligated to obtain relevant records in the possession of the Government. See 38 U.S.C.A. § 5106 (West 1991 & Supp. 1997); 38 C.F.R. § 3.159(b) (1996) ("When information sufficient to identify and locate necessary evidence is of record, the Department of Veterans Affairs shall assist a claimant by requesting, directly from the source, existing evidence which is either in the custody of military authorities or maintained by another Federal agency"). See also Counts v. Brown, 6 Vet.App. 473 (1994). Because of the change in the law brought about by the Veterans Claims Assistance Act of 2000, a remand in this case is also required for compliance with the notice and duty to assist provisions contained in the new law. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114 Stat. 2096, ___ (2000) (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because the RO has not yet considered whether any additional notification or development action is required under the Veterans Claims Assistance Act of 2000, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). To comply with the new law and to bring the development of the evidence to a conclusion, it will be necessary for the RO to prepare a new request for an NPRC search targeting both investigative materials related to the San Diego incident and unit records which might document the veteran's initial reports to unit personnel, and any ensuing actions. A request should also be submitted to the United States Marine Corps Historical Center, Archives Section, Building 58, Washington Navy Yard, Washington, D.C. 20374-0580. While a prior request was made to that unit, the report received, identified as "command chronologies" for Marine Corps units at San Diego and Camp Smith for the periods from January through June 1966 and January through June 1967, respectively, does not contain investigative or unit personnel information, and the reply does not otherwise indicate whether or not such documents might be available. Again, no inference can be drawn from the absence of a reply identifying the specific documents requested. The requests made pursuant to this remand to both the NPRC and the Marine Corps Historical Center must be followed up until the cited documents are either located, until a proper authority within each facility certifies that they are unavailable, or until it is apparent that further searches would be unfruitful. Additional evidentiary development is also necessary to comply with the provisions of M21-1 that pertain directly to the development of evidence in cases involving an alleged in- service PTSD stressor consisting of a sexual assault. The manual permits consideration of evidence from alternative sources when official reports do not document the claimed incident, and the provisions require that development of alternative sources be conducted. The United States Court of Appeal for Veterans Claims (previously known as United States Court of Veterans Appeals) (Court) has held that since the VA has undertaken to create a "special obligation" to assist in documenting stressors in sexual assault cases through the issuance of these manual provisions, certain evidentiary requirements articulated in other court cases are not operative. See Patton v. West, 12 Vet. App. 272 (1999). Pertinent to this case are the provisions of subparagraphs (8) and (9) of M21-1 § 5.14 reflecting that behavior changes at the time of the incident may indicate the occurrence of an in-service stressor. The provision also notes that "secondary" evidence may need interpretation by a clinician, especially if it involves behavior changes, and that evidence that documents such behavior changes may require interpretation by a clinician. Subparagraph (8) also provides examples of behavior changes that might indicate a stressor, including but not limited to visits to the dispensary without a specific diagnosis, sudden requests for change of duty assignment, lay statements of depression without identifiable reason for the depression, and evidence of substance abuse. Alternative sources of information cited in M21-1 § 5.14 include medical records from private physicians or caregivers, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members or other persons, personal diaries or journals, and information received from the veteran. The behavioral change brought into issue by the veteran and her attorney in this case consists of an alleged decline in job performance after the July 1967 incident, as reflected in a lower evaluation score. According to service department records, on July 31, 1967, the veteran received proficiency ratings of 4.0 (general military subjects) and 4.4 (duty), and a conduct rating of 4.2, which represented a slight decline from scores received on January 31, 1967. Higher scores were again received on January 31, 1968, June 1, 1968, July 31, 1968, and August 16, 1968. Although a slight fluctuation in the scores from one rating period to another took place throughout the veteran's service, the drop in the ratings at a point that coincided roughly with the time period cited for the claimed rape in Hawaii raises a question as to whether such drop provides corroboration of the veteran's claims regarding the alleged incident. The determination required is essentially medical in nature, and is therefore beyond the jurisdiction of the Board. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Given the potential significance of this information in corroborating the veteran's stressor allegations and the importance attached to it by the veteran and her attorney, it appears that a referral for interpretation by a clinician is appropriate, provided that the reviewing medical professional be advised that the determination must be made in the context of all of the evidence of record, and that if a conclusion as to the significance of the drop in evaluation scores cannot be drawn, that fact must be stated. Where the record before the Board is inadequate, a remand is required. Green v. Derwinski, 1 Vet. App. 121(1991). Accordingly, the case is remanded for the following actions: 1. The RO should take all necessary steps to obtain any additional VA examination or outpatient treatment records dated since February 1997, the date of the most recent records currently on file. The veteran should also be accorded an opportunity to provide additional medical evidence pertaining to psychiatric pathology by non VA medical providers that is not currently of record. 2. The RO should contact the NPRC and request additional records from both the Marine Corps Recruit Depot in San Diego and Camp H.M. Smith in Hawaii pertaining to the periods covered by the veteran's assignment to each. Specifically: (a) The NPRC should be requested to provide any reports or documents associated with Judge Advocate General investigations claimed to have been conducted in San Diego in May or June 1966, or at Camp Smith in approximately July 1967. (b) The NPRC should be requested to provide daily logs, morning reports, or unit histories from the veteran's unit in San Diego, and from her unit in Camp Smith during the referenced time periods. (c) The NPRC should also attempt to identify records from the Judge Advocate General or other operational entity which would tend to document the allegation that female service members were disciplined and/or discharged from service as a result of a lesbian attack on the veteran. (d) An attempt should be made to obtain any depositions provided by the veteran or other persons following the San Diego incident. (e) The NPRC should be asked to conduct all searches under both the veteran's maiden name and her married name in service. (f) The same inquiries should also be made to the United States Marine Corps Historical Center. To comply with the law and avoid the need for future remands, the above efforts should persist until the requested documents are received or until negative responses have been received from both the NPRC and the Marine Corps Historical Center. 3. The veteran should be accorded an opportunity to provide an additional statement containing information relevant to the incidents in service claimed as PTSD stressors. The names of any individuals involved would be particularly useful, as would the identification of the unit or units to which other such persons were assigned. 4. Upon completion of the following actions, the RO should refer the file to a medical facility for a psychiatric review of the evidence of record. The clinician should be requested to review the administrative document showing the veteran's proficiency and conduct scores, and to express a conclusion as to whether the decline in scores recorded on July 31, 1967, may be considered to represent behavioral changes associated with a sexual assault. If the totality of the evidence of record is insufficient to permit such a determination, the examiner should so indicate. The stated conclusion, if any, should reflect consideration of the scores in light of all evidence of record pertaining to circumstances that might affect her evaluation ratings. 5. The RO must review the file to ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied. For further guidance on the processing of this case in light of the changes in the law, the RO should refer to VBA Fast Letter 00-87 (November 17, 2000), as well as any pertinent formal or informal guidance that is subsequently provided by the Department, including, among others things, final regulations and General Counsel precedent opinions. Any binding and pertinent court decisions that are subsequently issued also should be considered. 6. After undertaking any development deemed appropriate in addition to that specifically requested above, the RO should reajudicate the issue of entitlement to service connection for a psychiatric disorder, including PTSD. The rating board should analyze the claim in light of the requirements of M21-1, Part III, § 5.14, and the decision of the Court in Patton, Id. with respect to assertions of PTSD associated with a sexual assault. If the determination is adverse to the veteran, a supplemental statement of the case should be prepared, and the veteran and her attorney should be allowed a reasonable period of time for reply. Thereafter, the appeal should be returned to the Board for further review, if in order. No action is required of the veteran until she receives further notice. The purpose of this remand is to obtain additional information and comply with the requirements of the law. The Board does not intimate any factual or legal conclusions as to the outcome ultimately warranted. The appellant 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. ROBERT E. SULLIVAN Veterans Law Judge Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).