Citation Nr: 0105779 Decision Date: 02/27/01 Archive Date: 03/02/01 DOCKET NO. 00-02 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Solomon J. Gully, IV, Associate Counsel INTRODUCTION The veteran served on active duty from June 1964 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) from a June 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. REMAND Recently enacted legislation, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), contains extensive provisions modifying the adjudication of all pending claims. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The salient features of the new statutory provisions (and where they will be codified in title 38 United States Code), may be summarized as imposing the following obligations on the Secretary: (1) The Secretary must provide application forms and notify the claimant and the representative, if any, if his application is incomplete, of the information necessary to complete the application (38 U.S.C.A. § 5102); (2) The Secretary must provide the claimant and the claimant's representative, if any, with notice of required information and evidence not previously provided that is necessary to substantiate the claim (38 U.S.C.A. § 5103(a)); (3) The Secretary must indicate which part of the information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary will attempt to obtain on behalf of the claimant (38 U.S.C.A. § 5103(a)); (4) The Secretary must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim (38 U.S.C.A. § 5103A(a)); (5) The Secretary must make every reasonable effort to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain (38 U.S.C.A. § 5103A(b)(1)); (6) If, after making reasonable efforts to obtain relevant records, the Secretary is unable to obtain the relevant records sought, the Secretary shall notify the claimant that the Secretary is unable to obtain records, and such 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 (38 U.S.C.A. § 5103A(b)(2)). (7) Whenever the Secretary attempts to obtain records from a Federal department or agency under this subsection or subsection (c) [38 U.S.C.A. § 5103A(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 (38 U.S.C.A. § 5103A(b)(3)). (8) In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (b) [38 U.S.C.A. § 5103A(b)] shall include obtaining the following records if relevant to the claim: (a) 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 (38 U.S.C.A. § 5103A(c)(1)). (b) 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 (38 U.S.C.A. § 5103A(c)(2)). (c) Any other relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain (38 U.S.C.A. § 5103A(c)(3)). (9) In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (a) [38 U.S.C.A. § 5103A(a)] shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim (38 U.S.C.A. § 5103A(d)(1)). (a) The Secretary shall treat an examination or opinion as being necessary to make a decision on a claim for purposes of paragraph (1) [38 U.S.C.A. § 5103A(d)(1)] if the evidence of record before the Secretary, taking into consideration all information and lay or medical evidence (including statements of the claimant)- (i) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (ii) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (iii) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. (10) Nothing in this section [38 U.S.C.A. § 5103A] shall be construed as precluding the Secretary from providing such other assistance under subsection (a) [38 U.S.C.A. § 5103A(a)] to a claimant in substantiating a claim as the Secretary considers appropriate (38 U.S.C.A. § 5103A(g)). (11) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary (38 U.S.C.A. § 5107). Service medical records show no recorded complaints, findings or statements of medical history indicative of PTSD. An October 1967 record indicates that the veteran received treatment for injuries sustained when he was "assaulted and robbed." The veteran reported that he was struck in the chest and left arm during the assault, and was knocked into some bushes. Current complaints included slight pain in the left forearm. A physical examination revealed no tenderness, or signs of trauma. The final assessment was "normal male 'post-assault.'" Service personnel records reveal that after taking 15 days of leave in April 1968, the veteran requested a five-day extension. This request was granted. The veteran failed to report for duty at the end of this extension, and was subsequently found to be absent without leave (AWOL) for three days. Consequently, he was reduced in rank from sergeant to airman first class (E-3). A May 1968 separation examination report notes a normal psychiatric evaluation, and is negative for a psychiatric disorder. VA inpatient and outpatient records from January 1980 to July 1997 reflect treatment for various disorders, including PTSD, depression and alcohol, cocaine and marijuana dependence. A March 1997 record indicates that the veteran filed a claim for disability benefits from the Social Security Administration (SSA). The veteran filed a claim of entitlement to service connection for PTSD in August 1997, and submitted VA and private medical records in support of his claim. A July 1998 Comprehensive Assessment report from the Washington state Department of Social and Health Services shows treatment for PTSD and depression, and notes a history of cocaine, cannabis and alcohol dependence. A July 1998 VA outpatient treatment record similarly notes a diagnosis of PTSD, depression, and a history of cocaine, cannabis and alcohol dependence. During a May 1998 VA examination, the veteran reported that he was raped during his first year of service, and indicated that he "ha[d] not been getting along very well" since his discharge. He explained that he had been consumed by this event since his separation from service. The veteran noted that he began drinking in service, and subsequently received treatment for alcohol dependence. He explained that he had been sober over the past two to three years. He reported experiencing "fairly constant" suicidal ideations, but indicated that he had not made an attempt. The veteran appeared depressed on mental status examination. He spoke slowly, and experienced difficulty with concentration and memory. While the veteran did not experience hallucinations during the examination, he reported that "his mind speaks to him." In addition, he felt that people were watching him. The diagnostic impression was AXIS I : Chronic major depression, and history of alcohol abuse and dependence in remission. AXIS II : No diagnosis. AXIS III : Please see physical examination. AXIS IV : Alleged rape while in the military. AXIS V : Global assessment of functioning (GAF) score of 50. Based on this evidence, a June 1998 rating decision denied service connection for PTSD. The veteran filed a notice of disagreement (NOD) with this decision in September 1998. Therein, he noted that while his service medical records show that he was personally assaulted, he was never given an opportunity to fully explain the circumstances surrounding the assault. The veteran related that the May 1998 VA mental status examination did not specifically address his claim for service connection for PTSD due to sexual assault in service, and maintained that it was inadequate. Finally, he reported current VA treatment for his PTSD. VA outpatient records show treatment for depression, and alcohol and cocaine dependence in June 1999. In a July 1999 PTSD Questionnaire, the veteran reported that he was raped by a sergeant while stationed in the Philippines in 1965. He explained that he was initially afraid to report the incident. When he later reported the rape to a major, he was told to get back to work. The veteran reportedly ran into the man who raped him when he was transferred to a U.S. Air Force base in Massachusetts. He explained that the sergeant physically assaulted him, and indicated that he feared for his life. In December 1999, the RO continued the denial of service connection for PTSD. The veteran submitted a substantive appeal (Form 9) the following month, perfecting his appeal. Therein, he provided the names of the officers to whom he reported the sexual assaults. During a March 2000 travel Board hearing, the veteran testified that he was raped by a senior enlisted man during service in the Philippines. Transcript (T.) at 3. While he reported the incident to a major, the officer did not want to discuss the matter. T. at 3. The veteran subsequently ran into the man who raped him when he was transferred to a U.S. Air Force base in Massachusetts. T. at 3. At that time, the perpetrator physically assaulted him and stole his money. T. at 3. The veteran explained that he tried to medicate his pain with alcohol and drugs, and indicated that his rank was reduced as a result of his drinking problem. T. at 4. He related that he received private medical treatment following his separation from service, and reported current VA outpatient treatment. T. at 6-7. The veteran provided the name of the sergeant who sexually assaulted him, as well as the names of the officers to whom he reported these incidents. T. at 9-12. The veteran's representative maintained that the May 1998 VA examination was inadequate, and requested that the case be remanded for further development. T. at 4-5. Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressors. 38 C.F.R. § 3.304(f) (2000). See 38 U.S.C.A. § 1154(b) (West 1991 & Supp. 2000); 38 C.F.R. § 3.304(d), (f) (2000). In this case, there must be corroborative evidence of the claimed in-service stressors. See Zarycki v. Brown, 6 Vet. App. 91 (1993). While the claims file includes diagnoses of PTSD, these diagnoses were based upon reported in-service stressors that have not been verified, including the alleged in-service physical assaults. Verification of the veteran's aforementioned reported in-service stressors is necessary. The existence of an event alleged as a "stressor" that results in PTSD, though not the adequacy of the alleged event to cause PTSD, is an adjudicative, not a medical determination. See Zarycki, supra. The sufficiency of the stressor is a medical determination and adjudicators may not render a determination on this point in the absence of independent medical evidence. See West; Colvin v. Derwinski, 1 Vet. App. 171 (1991). In addition to PTSD, there are also several other psychiatric diagnoses of record. The post-service diagnoses include PTSD, chronic major depression, and alcohol, cocaine and marijuana dependence. The Board notes that VA has adopted manual provisions that acknowledge that individuals claiming in-service personal assault may find it difficult to produce evidence to support the occurrence of the stressor. However, alternate sources are available that may provide credible support to a claim of an in-service personal assault. These 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 such as family members, roommates, clergy, or fellow service members, or copies of personal diaries or journals. VA Adjudication Manual M21-1 (M21-1), Part III, 5.14(c) (February 20, 1996). The United States Court of Appeals for Veterans Claims (Court) has held that the provisions in M21- 1, Part III, 5.14(c), which addresses PTSD claims based on personal assault, are substantive rules which are the equivalent of VA regulations. Cohen v. Brown, 10 Vet App 128 (1997); YR v. West, 11 Vet. App. 393, 398-99 (1998); Patton v. West, 12 Vet App 272 (1999). While the record reflects that the RO mailed the veteran a stressor development letter specifically tailored for personal assault cases in March 1999, the veteran was unable to recall specific information at that time. Based on testimony during the March 2000 travel Board hearing, however, it appears that the veteran recalls additional information regarding his in-service stressors. The Board finds that he should be given another opportunity to provide this information. See M21-1, Part III, 5.14(b)(3)(a), 5.14(c)(6), (c)(7); see also Patton. Behavior changes that occurred at the time of the alleged incident may indicate the occurrence of an in-service stressor based on personal assault. After accomplishing all development requested by this remand, the RO must determine whether the veteran exhibited behavior changes in service. See M21-1, Part III, 5.14(c)(8). If there is evidence of behavior changes, it should be determined whether these indicate the occurrence of a stressor. Secondary evidence may need interpretation by a clinician, particularly if it involves behavior changes, and evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. M21-1, Part III, 5.14(c)(9); Patton. Based on a March 1997 VA outpatient treatment record, it appears that the veteran applied for SSA disability benefits. However, it does not appear that the RO has attempted to obtain a copy of the veteran's Social Security records. Although any SSA decision would not be controlling, it is certainly pertinent to the veteran's appeal. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (VA's duty to assist includes obtaining SSA decision and supporting medical records pertinent to VA claim), and Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (VA cannot ignore SSA determination of disability but must provide reasons or bases regarding such determination). Further, there are indications in the record of the potential existence of additional post-service treatment records that may contain findings and a history pertinent to the veteran's claim. The Board notes that these records may be relevant to the disposition of the veteran's claim, both for the purpose of establishing key facts and for purposes of evaluating the probative value of the veteran's evidentiary assertions and other evidence of record. As the VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain (38 U.S.C.A. § 5103A(c)(3)), in addition to 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 (38 U.S.C.A. § 5103A(c)(2)), the Board finds that it has no alternative under the new legislation but to remand this matter so that the RO can take the necessary steps to obtain all medical records in the possession of SSA, and any additional outstanding VA or private treatment records. It should be further noted that whenever the Secretary attempts to obtain records from a Federal department or agency under this subsection or subsection (c) (to be codified at 38 U.S.C.A. § 5103A(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 (to be codified at 38 U.S.C.A. § 5103A(b)(3)). Accordingly, to ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The veteran may submit additional evidence and argument in support of his claim. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. In order to ensure that all relevant treatment records have been secured, the veteran should be requested to identify all sources of treatment for PTSD that are not currently a part of the record. After any necessary information and authorization are obtained from the veteran, outstanding records, VA or private, inpatient or outpatient, should be obtained by the RO and incorporated into the claims folder. The RO is again advised that efforts to obtain VA records should continue until they are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile (38 U.S.C.A. § 5103A(b)(3)). 3. The veteran should also be requested to indicate whether he is in receipt of, or has applied for, SSA disability benefits. If so, the RO should seek a copy of all records relating to the veteran's claim with the SSA. The RO should contact the SSA and request a copy of any decision on the merits of a claim and copies of any medical records reviewed in reaching that determination. If the SSA has made no decision or has no records, this should be documented in the record. The attention of the SSA should be invited respectfully to 38 U.S.C.A. § 5106 (West 1991 & Supp. 2000). 4. Since the veteran has alleged stressors that involve allegations of non-combat personal assault, the RO should develop the veteran's claim in compliance with Patton under all of the applicable requirements of VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, Paragraph 5.14(c) (Feb. 20, 1996). 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 if the veteran has provided sufficiently detailed information to make such a request feasible. 5. 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. 6. Following the above, the RO should determine whether any evidence added to the record warrants a further VA psychiatric opinion or examination. In this regard, if additional relevant evidence is added to the record, the RO should first refer the additional relevant evidence to the VA physician who conducted the examination in May 1998, if he is available, for review and an opinion as to whether the additional evidence would warrant any change in the conclusions the physician reached in May 1998 or whether the additional evidence would warrant a further examination. If the same physician is not available, this fact should be documented in the record and the matter should be referred to another appropriately qualified physician for an opinion as to whether the additional evidence would warrant any change in the conclusions the physician reached in May 1998 or whether the additional evidence would warrant a further examination. If, after review of the additional evidence and the opinion from the examining or reviewing physician, the RO finds that an additional VA psychiatric examination is warranted, the veteran should be examined by a VA psychiatrist to determine whether any psychiatric disorder or disorders are present, and, if so, the correct diagnostic classification of any disorder present. The examination report should include a detailed account of all pathology found to be present. The examiner should provide explicit responses to the following questions: (a) Does the veteran have a psychiatric disorder? (b) If a diagnosis of PTSD is appropriate, the examiner should determine whether the in-service stressor(s) found to be established by the RO are sufficient to produce PTSD. The examiner should be instructed that only the verified events listed by the RO may be considered as stressors for purposes of linking a PTSD to service. (c) The examiner should identify all existing psychiatric diagnoses, and specifically address the etiology of each disorder. If the examiner notes the presence of any coexistent psychiatric disorders, an opinion should be provided as to whether such psychiatric disorders are causally related to PTSD. The report of the examiner should include a complete rationale for all opinions expressed. All special studies or tests including psychological testing and evaluations, such as the Minnesota Multiphasic Psychological Inventory, deemed necessary by the examiner are to be accomplished. The claims folder or the pertinent medical records contained therein must be reviewed by the examiner in conjunction with the examination. The veteran is advised that failure to report for the scheduled examination may have adverse consequences to his claim as the information requested on this examination addresses questions of causation and symptomatology that are vital in this claim. 38 C.F.R. § 3.655 (2000); Connolly v. Derwinski, 1 Vet. App. 566 (1991). 7. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed in its entirety. In particular, the RO should ensure that all reasonable steps have been taken to secure any outstanding medical records identified by the veteran. In addition, the RO should review the requested examination report and the required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand. If any development requested above has not been furnished, including any requested findings and/or opinions on examination, remedial action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After undertaking any development deemed appropriate in addition to that specified above, the RO should re- adjudicate the issue of entitlement to service connection for PTSD. If the veteran's claim remains denied, he and his representative should be provided with a Supplemental Statement of the Case, which includes any additional pertinent law and regulations, specifically to include M21-1, Part III, 5.14(c). The veteran should then be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The case should then be returned to the Board for further review. No action is required of the veteran until he is notified. The purpose of this REMAND is to accomplish additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. 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. Richard B. Frank 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).