Citation Nr: 0105574 Decision Date: 02/23/01 Archive Date: 03/02/01 DOCKET NO. 00-00 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel INTRODUCTION The veteran had active military service from February 1949 to August 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which denied the veteran's claim seeking entitlement to service connection for PTSD. REMAND Initially, the Board notes 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 VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims (Court) 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 App. 477 (1999), withdrawn sub nom.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). Because of the change in the law brought about by the Veterans Claims Assistance Act of 2000, a remand in this case is 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. 2096-99 (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)). Therefore, for these reasons, a remand is required. Where, as here, the claim is based on an alleged personal assault such as a rape, VA has a special obligation to assist the veteran in developing the claim. See Patton v. West, 12 Vet. App. 272 (1999). In this regard, the Court has noted that VA's Adjudication Procedure Manual M21-1 (Manual M21-1), Part III, 5.14(c) provides very specific requirements for assisting the veteran in these types of cases, due to the unique circumstances and inherent difficulty often involved in substantiating and documenting these claims. This includes providing an opportunity to submit "alternative evidence" supporting her allegations, since the service records "may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities." See Manual M21-1, Part III, 5.14(c)(5). Such alternative source evidence also may include, among other things, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, as well as copies of personal diaries or journals or evidence of substance abuse and/or performance evaluations. Still other forms of alternative source evidence may include records showing the veteran had behavioral changes that occurred at the time of the incident in question, such as visits to a medical counseling or clinic or dispensary without a specific diagnosis or specific ailment, sudden requests that the veteran's military occupational series or duty assignment be changed without other justification, lay statements indicating increased use or abuse of leave without an apparent reason, increased disregard for military or civilian authority, unexplained economic or social behavior changes, etc. Id; see also Manual M21-1, Part VI, 7.46c(2) and 11.38. While the veteran filled out a form with respect to the foregoing behavioral changes, she was not asked to elaborate on those changes she had checked as relevant to her case. Thus, while the veteran has indicated there were some behavioral changes resulting from the alleged incident, these have not been fully developed at this time. It also should be noted that it is not necessary for her to actually prove that the incident in question occurred, but rather, it is only necessary that the preponderance of the evidence support the conclusion that it did. Also, if such additional evidence is submitted or otherwise obtained which corroborates the claimed stressor, she should undergo another VA psychiatric examination to obtain a medical opinion as to whether there is an etiological relationship between her current PTSD and the alleged sexual assault in service. See Green v. Derwinski, 1 Vet. App. 121 (1991). In this regard, it is imperative that the examiner be given the opportunity to review the file, so that all of the veteran's history shown in the records is considered. To ensure that VA has met its duty to assist the appellant in developing the facts pertinent to this claim, the case is REMANDED to the RO for the following development: 1. The RO should obtain the names and addresses of all medical care providers, VA and private, who treated the veteran for any psychiatric disorder to include PTSD since service discharge. After securing the necessary releases, the RO should obtain these records and associate them with the claims folder. 2. The RO should also ask the veteran to furnish a listing of any alternative sources from which pertinent evidence concerning the alleged service incident could be obtained. If the veteran provides sufficient identifying information in this regard, then an attempt to obtain such evidence should be made by the RO. The RO should follow all applicable procedures in Manual M21-1, Part III, 5.14(c). Any additional evidence submitted by the veteran or otherwise obtained should be associated with the claims folder. 3. If the RO determines that there is evidence of behavior changes at the time of the alleged incident that 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). 4. 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) (2000) 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. 5. Thereafter, if any claimed in-service stressor is corroborated by the evidence or if otherwise deemed warranted, the RO should schedule the veteran for another VA psychiatric examination to determine whether it is at least as likely as not that her current PTSD is the result of a sexual assault during service. The claims file, a separate copy of this remand, and a list of the stressor(s) found by the RO to be corroborated by the evidence must be provided to any examiner for review, the receipt of which should be acknowledged by the examiner in the examination report. It is imperative that if a psychiatrist is designated to examine the veteran that all relevant evidence in the claims file be reviewed, including a complete copy of this remand. The examiner should clearly set forth his/her findings and opinions with supporting rationale in detail. Since the purpose of such examination would be to determine the medical probability that the veteran has PTSD as a residual of her military service-and in particular a sexual assault, the examiner's report of the evaluation should contain a discussion of the evidence in this regard. Also, any diagnosis of PTSD should be in accordance with the criteria of The Diagnostic and Statistical Manual of Mental Disorders, 4th Ed. (DSM-IV) and should include the date of onset and the stressor that is deemed to be the cause of the condition. 6. The RO should review any examination report to determine if it is in compliance with the directives of this remand. If not, it should be returned, along with the claims file, for immediate corrective action. 7. The RO must also review the claims file and 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 Letters 00-87 (November 17, 2000), 00-92 (December 13, 2000), and 01-02 (January 9, 2001), as well as any pertinent formal or informal guidance that is subsequently provided by VA, including, among other things, final regulations and General Counsel precedent opinions. Any binding and pertinent court decisions that are subsequently issued also should be considered. After the development requested above has been completed to the extent possible, the RO should again review the record. If the benefit sought on appeal remains denied, the appellant and her 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 appellant need take no action unless otherwise notified. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2000) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. A. BRYANT Member, 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) (2000).