Citation Nr: 0108816 Decision Date: 03/26/01 Archive Date: 04/03/01 DOCKET NO. 00-08 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Pennsylvania Department of Military Affairs Bureau for Veterans Affairs and Assistance WITNESSES AT HEARING ON APPEAL Appellant & J. A. ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel REMAND The veteran served on active duty from August 1973 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in March 1999 by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, denying the veteran's claim of entitlement to service connection for post-traumatic stress disorder. The stated basis for the denial under 38 C.F.R. § 3.304(f) as in effect prior to March 7, 1997 was that there had been no showing that the claimed stressor involving an in-service rape in November 1973 actually occurred. In connection with the appeal that ensued, the veteran in a VA Form 9, Appeal to the Board of Veterans' Appeals, received by the RO in April 2000, specifically requested the opportunity to review her claims folder; that request was withdrawn per a telephone conversation between an RO employee and the veteran in May 2000. Effective March 7, 1997, the provisions of 38 C.F.R. § 3.304(f) were amended, see 64 Fed. Reg. 32807 (1999), with the revised portion of such regulation requiring credible supporting evidence that the claimed in-service stressor occurred. As well, during the pendency of this appeal, a significant change in the law was effectuated. Specifically, on November 9, 2000, the President of the United States signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 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 App. 477 (1999), withdrawn sub nom.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, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Based on this legislative change, the RO has not been afforded the opportunity of undertaking those actions necessary to ensure compliance with the notice and duty-to- assist provisions contained in the new law with respect to the matter on appeal. The end result is that the veteran has not been informed of the VCAA provisions that may have applicability to the issues herein presented and she therefore may have been denied the opportunity to formulate appropriate argument on appeal to the Board. It thus would be potentially prejudicial to the veteran were the Board to proceed to issue a merits-based 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)). The record reflects that the veteran's entitlement to service connection for an acquired psychiatric disorder was denied by the Board in a decision entered in March 1991. In Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996), the United States Court of Appeals for the Federal Circuit held that a claim based on the diagnosis of a new mental disorder, taken alone or in combination with a prior diagnosis of a related mental disorder, states a new claim, when the new disorder had not been diagnosed and considered at the time of the prior notice of disagreement. See also Patton v. West, 12 Vet. App. 272 (1999). As such, the claim for service connection for PTSD herein at issue is for de novo review, without regard to the Board's decision of March 1991. In Patton, 12 Vet. App. at 283, the Court discussed VA Adjudication Procedure Manual M21-1 (Manual M21-1), Part III, paragraph 5.14c (Feb. 20, 1996), noting that such is a substantially expanded version of former Manual M21-1, Part III, paragraph 7.46c(2) (Oct. 11, 1995) (evidence of behavior changes that may indicate occurrence of personal assault as an in-service stressor in a PTSD context). See YR v. West, 11 Vet. App. 393, 398-99 (1998). The Court found that such Manual provision was regulatory in nature. The Manual provisions set forth the development actions necessary to assist the veteran in obtaining supportive evidence of the claimed personal assault during service. The general Manual M21-1 provisions on PTSD claims in paragraph 5.14 require that in cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence. Manual M21-1, Part III, paragraph 5.14b(3). As to personal-assault PTSD claims, more particularized requirements are established. Specifically, Manual M21-1, Part III, paragraph 5.14c, states in pertinent part: The service records may be devoid of evidence [of personal assault] because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. Therefore, development to alternative sources for information is critical. Alternative sources that may provide credible evidence of the in- service stressor include: (a) Medical records from private (civilian) physicians or caregivers who may have treated the veteran either immediately following the incident or sometime later; (b) Civilian police reports; (c) Reports from crisis intervention centers, such as rape crisis centers or centers for domestic abuse; (d) Testimonial statements from confidants such as family members, roommates, fellow service members, or clergy; (e) Copies of personal diaries or journals. Manual M21-1, Part III, paragraph 5.14c(5). Rating board personnel must carefully evaluate all the available evidence. If the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an in-service stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in- service stressor. Examples of behavior changes that might indicate a stressor are (but not limited to): (a) Visits to medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; (b) Sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; (e) Lay statements describing episodes of depression, panic attacks or anxiety but no identifiable reasons for the episodes; (h) Evidence of substance abuse such as alcohol or drugs; Rating boards may rely on the preponderance of evidence to support their conclusions even if the record does not contain direct contemporary evidence. In personal assault claims, secondary evidence may need interpretation by a clinician, especially if it involves behavior changes. Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. Manual M21-1, Part III, paragraph 5.14c(8), (9). Regarding personal-assault cases, the Court noted in Patton, supra, that VA has provided for special evidentiary- development procedures, including interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis. The Court further pointed out that, in YR, where the veteran had been placed under hypnosis by a licensed social worker who concluded thereafter that there was no doubt that the veteran had been raped traumatically, a remand was required because, among other deficiencies in the adjudication, the Board had "entirely failed to consider the hypnosis evidence, let alone discuss its weight and credibility" or provide an adequate statement of "reasons [or] bases . . . for its acceptance or rejection". YR, 11 Vet. App. at 397-99. Moreover, the Court notes in Patton that in two places Manual M21-1, Part III, paragraph 5.14c, appears improperly to require that the existence of an in-service stressor be shown by "the preponderance of the evidence". Manual M21-1, Part III, paragraph 5.14c(3), (9). Any such requirement would be inconsistent with the statutory requirement that when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. In this case, the veteran alleges that service medical records are incomplete in that they do not reflect all attempts she made to obtain counseling or mental health services following the in-service rape. Based on the need for further procedural and evidentiary development as outlined above, this matter is hereby REMANDED to the RO for the following actions: 1. The RO must review the claims file and ensure that all notification and development actions required by the VCAA are 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 any final regulations and General Counsel precedent opinions. Any binding and pertinent court decisions that are subsequently issued also should be considered. 2. The RO should contact the veteran in writing for the purpose of advising her of the evidence needed to substantiate her claim for service connection for PTSD based on governing laws and regulations. The RO should also advise the veteran of her right to submit any additional argument and/or evidence in support of her claim of entitlement to service connection for PTSD. Such evidence may be of a lay or medical variety, including but not limited to copies of service medical or personnel records she may hold in her possession; statements from service medical personnel; "buddy" certificates or affidavits from fellow service persons; employment or retirement physical examinations; medical evidence from hospitals, clinics and private physicians by which or by whom the veteran may have been treated; letters written during service; photographs; pharmacy prescription records; or insurance examinations. Such evidence should be relevant to the question of whether the veteran currently has PTSD due to stressors experienced during her military service. 3. The veteran must also be requested to submit a comprehensive written statement containing as much detail as possible regarding the in-service rape and any other stressor to which she alleges she was exposed in service, which led to the onset of PTSD. She should be asked to provide specific details of the claimed stressful events during service, such as dates of any and all incidents to within seven days, types and locations of the incidents, full names and service numbers of any other persons present, detailed descriptions of events, and any other identifying information. The veteran must be advised that this information is necessary to obtain supportive evidence of her claimed stressors, and that she must be as specific as possible because without such details adequate research for verifying information cannot be conducted. She must also be advised to obtain and submit any verifying data from individuals who might have knowledge of the in-service stressors which is claimed to have led to the onset of PTSD, such as statements from fellow servicemen or family members, including any current or former spouse. In particular, the veteran should respond to the following with as much specificity as possible: (a) Was any medical care sought from service department or civilian medical personnel immediately following the incident or in the months following the incident? (b) Was the incident ever reported to civilian or military authorities? (c) Were the services of a crisis intervention center, such as a rape crisis center, ever sought? (d) To which person or persons did the veteran confide that a rape had occurred in or about November 1973, including any family members, roommates, fellow service members, or clergy, and at what point in time was this information shared by the veteran with any of the foregoing? Is the veteran able to get any statements from these individuals? (e) Was an entry made contemporaneous with the in- service rape in any personal diary or journal of the veteran regarding the assault in question? (f) Did any behavioral changes occur at the time of the incident indicating the occurrence of an in-service stressor, including but not limited to (i) a visit to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; (ii) a sudden request that the veteran's military occupational specialty or duty assignment be changed without other justification; (iii) the occurrence of episodes of depression, panic attacks or anxiety but no identifiable reasons for the episodes; (iv) substance abuse involving alcohol or drugs; (v) increased use of leave without immediate reason; (vi) changes in performance evaluations; (vii) increased or decreased use of prescribed or over-the-counter medications; (viii) disregard for military or civilian authority; (ix) obsessive behavior such as over or under eating; (x) pregnancy, human immunodeficiency virus, and/or sexually transmitted disease testing following the in- service rape; or (xi) unexplained economic or social behavior changes?. 4. Based on the information provided by the veteran, and that already demonstrated by the record, the RO should undertake those actions necessary to assist the veteran in obtaining evidence corroborative of the alleged in-service rape or personal assault. 5. In addition, the veteran should be contacted by the RO for the specific purpose of requesting that she provide a listing of the names and addresses of those VA and non-VA medical professionals or institutions who have evaluated and/or treated her for a psychiatric disability prior to and since her discharge from military service. The approximate dates of any such evaluation or treatment should also be provided, to the extent possible. Thereafter, the RO should, after obtaining proper authorization, obtain treatment records from those medical professionals or institutions referenced in connection with the aforementioned request that are not already contained in the claims folder. Any and all VA treatment records must be obtained regardless of whether in fact the veteran responds to the foregoing request. Such records, once obtained, must then be added to the claims folder. 6. The RO should through contact with the National Personnel Records Center and/or the Department of the Army obtain a complete set of service medical and personnel records of the veteran, including any and all records of neuropsychiatric treatment or counseling, disciplinary actions, and matters relating to the veteran's discharge from service for unsuitability. Once obtained, those records must then be made a part of the veteran's claims folder. 7. The RO should contact the Social Security Administration (SSA) in order to obtain any and all medical and administrative records utilized by that agency in determining the veteran's entitlement to SSA disability benefits. Once obtained, such records must be incorporated into the veteran's claims folder. 8. Based on any additional information obtained regarding the claimed stressor(s), as well as the information relating thereto previously supplied by the veteran and any pertinent evidence currently of record, the RO should prepare a summary of all the claimed stressors, with as much detail as possible. This summary, along with a copy of the veteran's Department of Defense Form 214 and the applicable Department of the Army Form, her service personnel records, and all associated documents should then be sent to the United States Armed Services Center for Research of Unit Records Army (USASCRUR) and/or the United States Army with a request to provide any information that may corroborate the veteran's alleged stressor(s). If this organization is unable to research the type of stressor involved in this case, it should so note for the record. 9. Following receipt of the USASCRUR/United States Air Force report, as well as the completion of any additional development requested above or suggested by those agencies, the RO should prepare a report detailing the nature of any in-service stressful event(s), verified by the USASCRUR/United States Air Force or through other documents. If no stressor is verified, the RO should so state in its report. Such report should then to be added to the claims file. 10. Thereafter, the veteran is to be afforded a VA medical examination by physician in the specialty of psychiatry for the purpose of determining the nature and etiology of her claimed PTSD. The veteran's claims folder in its entirety is to be furnished to the examiner prior to any evaluation of the veteran for use in the study of this case. Such examination is to include a review of the veteran's history and current complaints, as well as a comprehensive mental status evaluation. Any indicated diagnostic studies, including psychological testing and PTSD sub-scales, must also be accomplished if deemed warranted by the examiner. All established psychiatric diagnoses are then to be fully set forth. It is requested that the psychiatric examiner offer a professional opinion, with full supporting rationale, as to the following: (a) Is it at least as likely as not, based on clinical observations made to date and a review of the behavioral changes noted by the record since the incident in question, that the veteran was the victim of rape or other personal assault in service in or about November 1973? (b) Does the veteran have PTSD meeting the criteria of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994), and, if so, is it at least as likely as not that the veteran's PTSD is the result of an in-service rape or other personal assault, or if it is indisputable that that PTSD pre-existed service, did her PTSD undergo an increase in severity in service as a result of the in-service rape or personal assault? If so, is it indisputable that such increase was due to the natural progress of the disability? Use by the examiner of the italicized standard of proof in formulating a response is requested. 11. Following the completion of the foregoing actions, the RO should review the examination report. If such report is not in complete compliance with the instructions provided above, appropriate action should be taken to return such examination for any and all needed action. 12. Lastly, the RO should readjudicate the veteran's claim of entitlement to service connection for PTSD on the basis of all the evidence on file and all governing legal authority, including the VCAA. If the benefit sought on appeal is not granted, the veteran and her representative should be provided with a supplemental statement of the case which should include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The veteran need take no action until otherwise notified. The purpose of this remand is to obtain additional evidentiary and procedural development. No inference should be drawn regarding the final disposition of the claim in question as a result of this action. The law requires full compliance with all orders in this remand. See Stegall v. West, 11 Vet. App. 268 (1998). Moreover, this claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or the Court 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. 1999) (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. Iris S. Sherman 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).