Citation Nr: 0113624 Decision Date: 05/15/01 Archive Date: 05/23/01 DOCKET NO. 99-06 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD M. L. Wright, Counsel INTRODUCTION The veteran had active service from March 1952 to March 1956 and from February 1957 to January 1959. This appeal arises from a July 1998 rating decision of the Roanoke, Virginia, Regional Office (RO) which denied service connection for post-traumatic stress disorder (PTSD). The veteran appealed this determination. REMAND In November 2000, the President of the United States signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). This act introduces several fundamental changes into VA's adjudication process. As these procedures could not have been followed by the RO at the time of the above referenced rating decision, and as these procedures are more favorable to the appellant than those previously in effect, further development is in order. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Under section 3 of the Veterans Claims Assistance Act of 2000, (to be codified at 38 U.S.C. § 5103A), VA must first notify the claimant that the Secretary is unable to obtain records with respect to the claim. Such a notification must, (a) identify the specific 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. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with the diagnostic criteria of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV), credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. §§ 3.304, 4.125 (2000). The actual 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. Moreau v. Brown, 9 Vet. App. 389, 396 (1996). 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 Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this case, the veteran does not allege that any in-service stressors were the result of combat service, and his Department of Defense (DD) Form 214's do not indicate that he was awarded any badge or decoration for valor or combat service. As there is no evidence to presume that the veteran engaged in combat, there must be corroborative evidence of the claimed in-service stressors. See Cohen v. Brown, 10 Vet. App. 128, 138 (1997); see also 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. §§ 3.304(d), (f). The veteran's claimed in-service stressor involved a sexual assault during his first period of active service. He alleged that a "Technical Sergeant (Sgt.) H." (Full name redacted in light of the Privacy Act. 5 U.S.C. § 552a (1994).) forced him into an abusive sexual relationship and kept him for a period of time in a virtual form of servitude. The veteran asserted that he was susceptible to such circumstances because his father and other relatives were military veterans who had taught him to be submissive to authority figures. It was claimed by the veteran that "Sgt. H" was his superior during part of his first period of service and had taken advantage of the veteran's submissive nature. He asserted that "Sgt. H" had even traveled with him to visit his family in Virginia and had met his hometown girlfriend. It was alleged that "Sgt. H" later wrote a letter to this girlfriend, who he learned the veteran planned to marry, and threatened her if she in fact married the veteran. The veteran has reported that he did later marry this girlfriend and this woman is his current spouse. He asserted that his abusive relationship with "Sgt. H" continued until the this soldier was reassigned to a base in Saudi Arabia. The veteran claimed that his second period of service was uneventful until the military learned that "Sgt. H" was a homosexual, for which he was forced to leave the military. However, "Sgt. H" was also forced by the military to identify his former partners and divulged his prior relationship with the veteran. The veteran alleges that because of this accusation the military also forced him to leave active service. It is noted that victims of 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, 5.14c (February 20, 1996). The U. S. Court of Appeals for Veterans Claims (Court) has held that the provisions in M21-1, Part III, 5.14c, which addresses PTSD claims based on personal assault, are substantive rules which are the equivalent of VA regulations. YR v. West, 11 Vet. App. 393, 398-99 (1998); Patton v. West, 12 Vet App 272 (1999). Veterans who claim service connection for disabilities due to an in-service personal assault face unique problems documenting their claims. A stressor development letter specifically tailored for personal assault cases should be sent to such veterans. However, the RO has not sent the veteran such a letter and the Board finds that this should be done. See M21-1, Part III, 5.14b (3)(a), 5.14c (6), (7). Behavior changes that occurred at the time of the 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, 5.14c (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, 5.14c (9). The veteran's DD 214 prepared in March 1956 indicates that his last service station was at Sampson Air Force Base in Geneva, New York. The veteran obtained and then submitted copies of "Sgt. H's" service personnel records in September 1998. These records reveal that "Sgt. H" worked as a personnel service supervisor at Sampson Air Force Base in New York from September 1952 to May 1954. He was then stationed in Saudi Arabia from July 1954 to July 1955. "Sgt. H's" DD 214 of July 1958 indicates that his MOS was special services supervisor and, apparently, he was discharged from the military under other than honorable conditions for "unfitness, homosexual acts." The only service records currently in the claims file for the veteran's periods of service are two DD 214's, one covering each period of service. The upgraded DD 214 covering the second period of service indicates that the reason for the veteran's separation from the military was "homosexual(ity)," but his discharge was indicated to be honorable. This DD 214 was signed by a Command Sergeant Major representing the U.S. Air Force's Boards and Corrections Section. It was indicated that the veteran had filed a claim with this section in July 1980 to have his discharge upgraded. The veteran has claimed that a favorable decision was issued by this section in 1981. The DD 214 indicates that copies of this section's work were furnished to "MPerR." It has been alleged by the veteran that he never sought medical treatment during his military service and had not disclosed the abusive sexual relationship with "Sgt. H" due to the shame he felt. The RO did request the veteran's service medical records from the National Personnel Records Center (NPRC), but the NPRC responded in December 1997 that these records were now unavailable as they had probably been destroyed by fire. Because of the more stringent requirements to assist the veteran under the VCAA, the Board finds that further development is warranted in this case. It appears that the veteran's service personnel records were reviewed by the military board that upgraded his discharge for his second period of active service and may still be in the possession of the U. S. Air Force. The evidence reviewed by this military board would be pertinent to help verify the veteran's claims regarding his relationship with "Sgt. H." Also, because of the circumstances of his second discharge from the military, it appears that the military had undertaken a significant investigation of "Sgt. H's" activities and associations. The RO should contact the United States Air Force's Office of Special Investigations and request copies of any investigation report involving alleged homosexual activity of either "Sgt. H" or the veteran that was completed in 1958 or 1959. In addition, it does not appear that VA has ever requested the veteran's service personnel records from the NPRC. These records could possibly indicate variances in the veteran's performance during his alleged relationship with "Sgt. H" that could also help substantiate this claim. If the NPRC cannot locate the veteran's service records, then it should be requested to identify any alternative sources that might have copies of these records. The Board acknowledges that the RO did request in June 1998 that the veteran complete a Request for Information Needed to Reconstruct Medical Data (NA Form 13055). The veteran submitted this form in June 1998, but indicated that he had not received any medical treatment during his military service. He failed to identify what units he had been assigned to during his military service. It does not appear that VA ever made any further attempts to reconstruct these military files. The Board takes this opportunity to inform the veteran and his representative of the importance for him to provide detailed information about his assigned units and activities during his military service. Without such information, it may be impossible for the NPRC to reconstruct his military records from possible alternative sources. This information could be crucial to substantiating his alleged stressors, and without such information, his claim could be denied. It appears that the veteran's current spouse may have first hand, contemporaneous, evidence that could verify his sexual assault. A review of the veteran's claims file indicates that VA has never directly asked the veteran to submit either a copy of the alleged letter from "Sgt. H" or a statement from the veteran's spouse indicating that she was threatened by this individual. Obviously, such evidence would be pertinent to establishing the alleged stressors. Such a request should be made on remand. Finally, the veteran has identified private healthcare professionals that have treated his claimed PTSD. The RO has attempted to develop this evidence and letters from these healthcare providers have been incorporated into the claims file. However, the veteran's actual treatment records were not submitted. On remand, the RO should request that legible copies of these records be submitted to VA. Therefore, in order to ensure that the record is fully developed, this case is REMANDED to the RO for the following: 1. The RO should contact the veteran, and request that he identify any health care provider who has treated him for PTSD since service separation. Based on his response, the RO should attempt to procure copies of all records which have not previously been obtained from identified treatment sources. The RO should specifically request legible copies of the veteran's treatment records from Drs. Nelson and Saylor. All attempts to secure this evidence must be documented in the claims folder by the RO. Efforts to secure records in the possession of the U. S. Government must continue until the RO is reasonably certain these records do not exist or further efforts would be futile. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the appellant and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The veteran must then be given an opportunity to respond. 2. The RO should also contact the veteran and request that he provide detailed information about the units he was assigned to during his military service. He should also be requested to submit a legible copy of the letter allegedly sent by "Sgt. H" to his spouse in the mid to late 1950's. If this letter is no longer available, the veteran should be informed that a lay statement from his spouse attesting to the circumstances and contents of this letter may be beneficial to substantiating his claimed stressors. In addition, a stressor development letter, specifically tailored for personal assault cases, as required by M21-1, Part III, 5.14b (3)(a), 5.14c (6), (7), should be sent to the veteran. The veteran is hereby informed that the United States Court of Appeals for Veterans Claims has held that asking him to provide the underlying facts, i.e., the names of individuals involved, the dates, and the places where the claimed events occurred, does not constitute either an impossible or an onerous task. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 3. The RO should again contact the NPRC and request the veteran's service medical and personnel records. If such records are located by the NPRC, they should be forwarded to the RO and associated with the claims file. If the NPRC cannot locate such records, then it should identify alternative sources for this evidence. The RO must conduct development and follow-up on all identified alternative sources. Efforts to secure these records must continue until the RO is reasonably certain these records do not exist or further efforts would be futile. If the RO is unable to secure these records, then it must inform the veteran of this circumstance in accordance with the itemized instructions of Paragraph 1. 4. The RO should contact both the U. S. Air Force's Office of Special Investigations (HQ AFOSI/SCR, FOIA/PA Branch, P.O. Box 2218, Waldorf, Maryland 20604-2218), and the Air Force Review Boards Office (550 C Street W, Suite 40, Randolph AFB, Texas 78150), and request legible copies of the veteran's personnel records that are in their possession. The Office of Special Investigations should specifically be requested to submit copies of any investigation conducted in the late 1950's regarding either the veteran and/or "Sgt. H." If a signed release form is required, then such a form should be obtained from the veteran. To facilitate an answer the RO should provide copies of the veteran's DD 214's to each office. All logical leads presented by the noted offices, to include a request for the Board and Corrections Section to identify the office referred to as "MPerR" on the veteran's DD 214, must be pursued. Efforts to secure these records must continue until the RO is reasonably certain these records do not exist or further efforts would be futile. If the RO is unable to secure these records, then it must inform the veteran of this circumstance in accordance with the itemized instructions of Paragraph 1. 5. Thereafter, if the RO determines that there is evidence of behavior changes at the time of an alleged stressor which 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, 5.14c (9). If the RO determines that there is no evidence of behavioral changes that fact should be noted and reasons and bases for that opinion provided. 6. The RO should then review the file and make a specific written determination with respect to whether the veteran was exposed to a verified stressor, or stressors, in service, and, if so, the nature of the specific verified stressor or stressors established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 7. If, and only if, a stressor is corroborated, and if the benefit sought on appeal cannot otherwise be granted, then the veteran should be afforded a VA psychiatric examination. Prior to this examination the examiner must be provided a list of any stressors corroborated by the RO. The claims file and a separate copy of this remand must be provided to the examiner for review. The examiner should determine whether the veteran has PTSD based on a corroborated stressor. The examiner is instructed that only the verified events listed by the RO may be considered as stressors. The examiner must utilize DSM-IV in diagnosing any existing psychiatric disability. If PTSD is diagnosed, the examiner must explain whether and how each of the diagnostic criteria is or is not satisfied, and identify the verified stressor(s) supporting the diagnosis. A complete rationale must be given for any opinion expressed, and the foundation for all conclusions should be clearly set forth. The report of the psychiatric examination should be associated with the veteran's claims folder. 8. 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, including if the requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be taken. 9. The veteran is hereby notified that it is his responsibility to report for all examinations, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2000). In the event that the veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 10. The veteran's claim for service connection for PTSD should then be readjudicated with consideration of all pertinent law, regulations, court decisions, and M21-1, Part III, 5.14c. If the veteran's claim remains denied, he should be provided with a supplemental statement of the case (SSOC), which includes any additional pertinent law and regulations. This SSOC must specifically inform the veteran and his representative of the information, lay evidence, or medical evidence necessary to substantiate his claims. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). The applicable response time should be allowed. This case should then be returned to the Board, if in order, after compliance with the customary appellate procedures. No action is required of the veteran until he is so informed. 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). The Board intimates no opinion as to the ultimate decision warranted in this case, pending completion of the requested development. DEREK R. BROWN 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).