Citation Nr: 0108420 Decision Date: 03/22/01 Archive Date: 03/29/01 DOCKET NO. 97-17 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Colorado Department of Social Services, Department of Veterans Affairs ATTORNEY FOR THE BOARD Solomon J. Gully, IV, Associate Counsel INTRODUCTION The veteran served on active duty from January 1968 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) from a March 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. A review of the record reveals that in an April 1997 substantive appeal (Form 9), the veteran indicated that he desired a travel Board hearing at the local RO. A letter notifying the veteran that a travel Board hearing was scheduled in February 2000 was mailed to his last known address, and was not returned to the RO as undeliverable. A handwritten note in the claims folder indicates that the veteran failed to appear for his travel Board hearing. Accordingly, the Board will proceed with this case. REMAND 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 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well-grounded claim 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 App. 477 (1999), withdrawn sub nom.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 VCAA, 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, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). The other salient features of the new statutory provisions impose the following obligations on the Secretary (where they will be codified in title 38 United States Code is noted in parentheses): (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 VA is unable to obtain; (b) briefly explain the efforts that the VA 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. Service personnel records reveal that the veteran was convicted of assaulting two soldiers in a July 1973 court-martial proceeding, and was sentenced to a correction camp. A June 1974 separation examination report notes a normal psychiatric clinical evaluation. The veteran filed a claim of entitlement to service connection for PTSD in September 1996. On VA examination in November 1996, the veteran reported that he never saw combat during service. He explained that he served as a recruiter while stationed in Germany, and indicated that he felt responsible for the men he re-enlisted who were subsequently killed in Vietnam. The veteran related that he was court- martailed after stabbing two other soldiers in a knife fight, and spent three months in a stockade in Germany before being transferred to a facility in the United States for rehabilitation. Following a mental status examination, the physician concluded that the veteran did not qualify for a diagnosis of PTSD. He explained that the veteran was not exposed to unusual or life threatening circumstances during service, and never served in a combat area. The examiner opined that the veteran's inability to stay in intimate relationships was likely related to a character disorder resulting from growing up in a severely dysfunctional and alcoholic family. Based on this evidence, a March 1997 rating decision denied the veteran's claim of entitlement to service connection for PTSD. The veteran filed a notice of disagreement (NOD) with this decision in April 1997, and submitted a substantive appeal (Form 9) later that month, perfecting his appeal. VA outpatient records show treatment for PTSD, major depression, and a bipolar disorder from December 1997 to May 2000. In a June 2000 PTSD questionnaire, the veteran reported that he was assigned to funeral detail when stationed at Fort Lewis, Washington. He was unable to recall the dates or times of any of the funerals. In correspondence later that month, the veteran explained that he was on funeral detail two to three times a week while stationed at Fort Lewis, Washington, which required him to escort approximately 150 dead soldiers to their gravesites over a one-year period. He related that he was placed on recruiting duty while stationed in Germany and re-enlisted two of his friends, who were later killed in Vietnam. In July 2000 correspondence to the United States Armed Services Center for Research of Unit Records (USASCRUR), formerly the United States Army and Joint Services Environmental Support Group (ESG), the RO requested information which would verify any of the veteran's alleged stressors. In a response later that month, the USASCRUR reported that it was unable to verify the claimed stressors and indicated that more detailed information was necessary to conduct a meaningful search. According to the record, the soldiers named in the veteran's June 2000 letter were not listed in U.S. Army casualty data. In September 2000, the veteran reported that he was raped during service in September 1969, when he returned to the barracks intoxicated and passed out in his bunk. One of the veteran's friends attempted to stop the men from raping him, but feared for his life because "there were too many of them." The veteran stated that he was afraid to report the incident and was "never comfortable" following the attack. He explained that he started using drugs and alcohol to forget the incident. He related that he always carried a weapon for protection and practiced knife throwing. The veteran reported that two drunken soldiers came into his barracks with knives in 1973 and he feared that he would be raped again. Consequently, he grabbed one of the knives and "cut both of them pretty bad." He explained that he was sentenced to a corrections camp after being convicted in a court-martial proceeding. He was subsequently given funeral detail. The veteran reported an inability to maintain relationships following his separation from service and indicated that he experienced "nightmares about the dead and the burials." During a September 2000 VA examination, the veteran reported four periods of psychiatric hospitalization since 1996 and monthly outpatient psychotherapy. The diagnostic impression was polysubstance abuse, possibly in partial remission, and a pain disorder associated with both psychological factors and a general medical condition. A personality disorder with antisocial characteristics was also reported. 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). The Board notes that the 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 Court has indicated 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. Patton v. West, 12 Vet. App. 272, 282 (1999). Under the provisions of M21-1, a stressor development letter specifically tailored for personal assault cases should be sent to such veterans. While the record reflects that the RO mailed the veteran a PTSD questionnaire in October 1996, it does not appear that it sent him the personal assault stressor development letter. The Board finds that this should be done. See M21-1, Part III, 5.14(b)(3)(a), 5.14(c)(6), (c)(7); see also Patton. In addition, a review of the claims folder reveals that relevant evidence in support of the veteran's claim may exist or could be obtained. See Epps v. Brown, 9 Vet. App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). In particular, during the most recent VA examination, the veteran reported four periods of psychiatric hospitalization since 1996, and monthly outpatient psychotherapy. 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. It also appears that the veteran is currently receiving disability benefits from the Social Security Administration (SSA). However, records from the SSA have not been associated with the veteran's claims folder. Although any SSA decision would not be controlling, it may be 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). 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. 3. The RO should also make every effort to obtain 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. 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 v. West, 12 Vet. App. 272 (1999) under all of the applicable requirements of the 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. If warranted, 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 Patton, 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. If, after review of the additional evidence, 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 claims folder or the pertinent medical records contained therein must be reviewed by the examiner in conjunction with the examination. The examination report should include a detailed account of all pathology found 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. 7. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 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. The veteran should then be afforded the applicable opportunity to respond before the record is returned to the Board for further review. 9. The RO must 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. 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. John J. Crowley Acting 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).