Citation Nr: 0112556 Decision Date: 05/02/01 Archive Date: 05/09/01 DOCKET NO. 98-18 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder (other than post-traumatic stress disorder), to include major depression secondary to the service-connected disability of tympanic membrane. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The appellant had active duty service from August to November of 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 1997, the RO denied the veteran's claim for service connection for major depression as secondary to service-connected perforation of the left tympanic membrane. The veteran subsequently filed a claim for PTSD. In November 1998, after additional evidence was submitted, the RO issued a supplemental statement of the case denying service connection for both "an acquired psychiatric disorder, to include major depression secondary to the service-connected disability of tympanic membrane," and PTSD. The Board has determined that the issues are more accurately characterized as stated on the cover page of this decision. REMAND A review of the RO's decisions, to include the most recent supplemental statement of the case, dated in May 2000, shows that the RO denied claims of entitlement to service connection for an acquired psychiatric disorder, and PTSD, as not well grounded. However, during the course of the appeal, legislative changes have significantly altered VA's duty to assist, to include elimination of the requirement of submission of a "well-grounded" claim before the duty to assist attaches. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-472, 114 Stat. 2096 (2000) ("Veterans Claims Assistance Act"). In this case, the veteran has yet to be informed of the recent legislative changes as set forth in the Veterans Claims Assistance Act, and the RO has yet to apply these changes to the veteran's claims of entitlement to service connection for an acquired psychiatric disorder (other than PTSD), to include major depression secondary to the service- connected disability of tympanic membrane, and PTSD. Under the circumstances, the Board has determined that it cannot issue a decision on the veteran's claims without prejudicing his right to due process under law. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board therefore concludes that due process considerations mandate that the RO must consider the veteran's claims under the recent legislative changes contained in the Veterans Claims Assistance Act in the first instance. See also Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). In addition, with regard to the claim for PTSD, the appellant asserts that he was struck on both sides of his head with the butt of an M-14 rifle by a drill instructor in about September 1972. In this regard, the evidence is somewhat at odds with the veteran's claimed stressor. Specifically, service medical records, dated in September 1972, note that the veteran had a history of being "slapped by D.I." in the region of his left ear, and show that he had a perforated left eardrum. There is no indication that the veteran was hit with a rifle, nor is there any evidence of right ear trauma, or trauma to the right side of the head. On remand, the RO should make a finding of fact as to the claimed stressor. Furthermore, a decision by the Court, Patton v. West, 12 Vet. App. 272 (1999), clearly alters the landscape in the adjudication of claims of service connection for PTSD based upon personal assault. In Patton, the Court emphasized that statements contained in prior decisions indicating that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'" of a claimed stressor and that "[a]n opinion by a mental health professional based on a post-service examination of the veteran cannot be used to establish the occurrence of the stressor," were made in the context of discussing PTSD diagnoses other than those arising from personal assault. Id. at 280; see also Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). With regard to personal assault cases, the Court pointed out that "VA has provided special evidentiary development procedures, including the interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis." Id. (citing VA Adjudication Procedure Manual M21-1 (M21-1), Part III, 5.14c (8), (9)). The Court has also held that these provisions of M21-1, which provide special evidentiary procedures for PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations. See YR v. West, 11 Vet. App. 393 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997). Specifically, M21-1, Part III, 5.14c subparagraph (8) (redesignated PartVI, paragraph 11.38b(2)), provides that "[i]f the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an inservice 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): visits to a medical or counseling clinic or dispensary without specific diagnosis or specific ailment; changes in performance and performance evaluations; increased disregard for military or civilian authority; increased interest in tests for Human Immunodeficiency Virus (HIV) or sexually transmitted diseases; and breakup of a primary relationship. Subparagraph (9) provides that "[r]ating 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 which documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." The Court in Patton went on to note that the manual improperly appeared to require that the existence of the in- service stressor be shown by a preponderance of evidence. Any such requirement would be inconsistent with the so called equipoise doctrine set forth in 38 U.S.C.A. § 5107(b) where the benefit of the doubt is given to the claimant unless the evidence preponderates against the claim. Accordingly, a remand is required for the RO to advise the appellant of general evidentiary requirements for personal assault cases, i.e., that the claimed assault(s) must be verified, and to inform him as to the types of evidence which may be probative of his claim, as indicated in the aforementioned provisions of M21-1 and Patton. On remand, the veteran should be given the opportunity to submit a full and detailed list of: 1) any evidence of behavioral changes which may support his claim; and 2) a list of fellow marines and/or civilians who may be able to provide lay statements as to either the occurrence of the claimed stressor, or changes in the veteran's observed behavior (the Board stresses that under M21-1, Part VI, 11.38b(2) the changes in his observed behavior must have been witnessed "at the time of the claimed stressors." The Board points out that although M21- 1 provides that evidence of changes of behavior that occurred at the time of the incident may indicate the occurrence of an in-service stressor, such evidence may need interpretation by a clinician. See M21-1, Part VI, 11.38b(2). As a final matter, under M21-1, claims for PTSD in which traumatic events take place prior to, or after separation from, service may require comment from the examining physician. See M21-1, Part VI, 11.38e. In this case, there is an issue as to whether the veteran lost a wife and daughter in a motor vehicle accident. Specifically, the medical evidence shows that he reported that his wife and daughter had died in a motor vehicle accident in about September 1977. See Binghamton General Hospital report, dated in May 1983 (noting a "history of chronic depression for the last three years following the accidental death of his wife and daughter"). Similar histories are found in two other medical reports. See Broome County Mental Health Clinic (BCMHC), dated in December 1984 (noting a history of heavy drinking, "especially after the accident that led to the death of his wife and daughter"); report from United Health Services, dated in July 1985, (noting that the veteran's wife reported that he had a seven-year psychiatric history "after losing his wife and daughter in a car accident"). The Board further notes that an application for compensation (VA Form 21-526), received in April 1987, shows that the veteran reported that he had been married two times, that he was first married in July 1974 in Los Angeles, and that this marriage ended in death in September 1977. Finally, a November 1984 BCMHC report shows that the veteran reported that he had been married three times. However, in his notice of disagreement, received in September 1997, the veteran disputed this, asserting that "I was never married nor did I have a daughter." He further asserted that his present marriage is his only marriage. On remand, the RO may wish to make a finding of fact on this matter, and if verified, and if the RO determines that another PTSD examination is required, the examiner should comment on this, as well as the presence or absence of other traumatic events and their relevance to the current symptoms. See M21-1, Part VI, 11.38e. Based on the foregoing, additional development is necessary and this case is REMANDED to the RO for the following action: 1. The RO should contact the veteran and request that he identify independently verifiable evidence of behavioral changes which occurred at the time of the alleged stressor, and to provide a list of any fellow marines and/or civilians, and their addresses, who may be able to provide lay statements as to the occurrence of the claimed stressor, and/or changes which they observed in his behavior at the time of the claimed stressor. 2. The RO should ensure that its efforts conform to all relevant provisions of Manual 21-1 regarding development in PTSD claims based on personal assault, to include undertaking all reasonable efforts to locate any witnesses identified, and, if located, to obtain statements from them regarding their knowledge of the veteran's alleged stressors. 3. After undertaking any additional development deemed appropriate, the RO should review the record and adjudicate the issues of service connection for an acquired psychiatric disorder (other than PTSD), to include major depression secondary to the service-connected disability of perforated left tympanic membrane, and PTSD, on a de novo basis, and determine whether the benefits sought can be granted, specifically considering the recent legislative changes as contained in the Veterans Claims Assistance Act of 2000. The RO should ensure that its efforts conform to all relevant provisions of the Act. With regard to the claim for PTSD, the RO's decision should include a discussion of any evidence of a change of behavior at the time of the incident which may corroborate the claimed stressor(s), as contemplated in M21-1. If the decisions remain adverse to the veteran, he should be furnished a supplemental statement of the case. After affording the veteran a reasonable opportunity to respond, the case should be returned to the Board for further appellate review. 4. The veteran is advised that it is his responsibility to obtain evidence in support of his claims, and that if he has or can obtain evidence which shows that he has an acquired psychiatric disorder, to include major depression secondary to his service-connected disability of perforated left tympanic membrane, or PTSD, as a result of his service, he must submit that evidence to the RO. If the benefits sought are not granted, the veteran and his representative should be furnished a supplemental statement of the case, and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. CONSTANCE B. TOBIAS 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).