Citation Nr: 0114083 Decision Date: 05/18/01 Archive Date: 05/23/01 DOCKET NO. 00-20 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder. 2. Entitlement to an increased rating for migraine headaches, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Keith W. Allen, Counsel INTRODUCTION The veteran served on active duty in the military from December 1982 to December 1986. In December 1994, the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, denied the veteran's claims for service connection for post-traumatic stress disorder (PTSD), for a rating higher than 30 percent for her migraine headaches, and for a temporary total rating of 100 percent for her migraine headaches-pursuant to 38 C.F.R. § 4.29 ("paragraph 29")-for being hospitalized for more than 21 days at a VA medical center (VAMC) for treatment of this condition from February 7, 1994, to March 11, 1994. She appealed to the Board of Veterans' Appeals (Board). The Board issued a decision in April 1997 granting the claim for a temporary total rating of 100 percent pursuant to 38 C.F.R. § 4.29. However, the Board remanded the other claims to the RO-requesting service connection for PTSD and a rating higher than 30 percent for the migraine headaches. The RO since has returned these claims to the Board, and they are the only remaining issues on appeal. REMAND The veteran alleges that she has PTSD from being repeatedly raped by several of her superior officers in service (who were sergeants), and that two civilians also raped her, too. She also alleges that her migraine headaches are more severe than currently rated. Unfortunately, however, the Board cannot yet adjudicate the veteran's claims because the RO did not complete all of the development requested by the Board in the April 1997 remand, so this case again must be returned to the RO for completion of those directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders, and the Secretary of VA, as head of the Department, also has a concomitant duty to ensure compliance with the terms of the remand). In the April 1997 remand, the Board directed the RO to: 1. contact the National Personnel Records Center (NPRC) and request copies of any performance evaluations the veteran may have received while she was on active duty in the military, or any additional service medical records (SMRs) specifically concerning marital counseling that she may have received in August 1986, also while on active duty, through the Social Work Service, HSHM- SWS, El Paso, Texas 79920. 2. contact the veteran to identify any treatment that she may have received since September 1996 for her migraine headaches, and at any time since service for PTSD, and to obtain those records with her authorization. 3. have the veteran submit a comprehensive statement listing any other, "alternative...evidence," to support her allegations of sexual assaults (repeatedly being raped) while in service, leading to PTSD-since, by her own admission, the assaults were not actually documented in her SMRs, and recognizing that many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. See Manual M21-1, Part III, 5.14(c)(5); see also Patton v. West, 12 Vet. App. 272 (1999). Such alternative source evidence also could include, among other things, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, as well as copies of personal diaries or journals or evidence of substance abuse and/or performance evaluations. Still other forms of alternative source evidence could include records showing the veteran had behavioral changes that occurred at the time of the incident in question, such as visits to a medical counseling or clinic or dispensary without a specific diagnosis or specific ailment, sudden requests that the veteran's military occupational series or duty assignment be changed without other justification, lay statements indicating increased use or abuse of leave without an apparent reason, increased disregard for military or civilian authority, unexplained economic or social behavior changes, etc. Id; see also Manual M21-1, Part VI, 7.46c(2) and 11.38. 4. contact the alternative sources identified by the veteran to obtain statements from them-including, if necessary, conducting a VA field examination involving personal interviews with witnesses, etc., and having the RO prepare a summary report of the resulting findings indicating which, if any, of the veteran's alleged stressors in service actually were verified or otherwise established by the record-in accordance with 38 C.F.R. § 3.304(f). And in making that determination, the RO was requested to address any credibility questions raised by the record. 5. after completion of the above development to the extent possible, and if it was determined that there was credible supporting evidence that an alleged stressor actually had occurred, the RO was to schedule the veteran for a VA psychiatric examination-preferably by a psychiatrist who had not previously examined her-to obtain a medical opinion indicating the correct diagnosis of any psychiatric disorder present and to determine whether the diagnostic criteria for PTSD were satisfied. The psychiatrist designated to examine the veteran also was requested to review all of the relevant medical evidence in the claims folder; to reconcile the various diagnoses already of record; and to causally relate the diagnosis of PTSD, if found, to a stressor the RO had verified. The psychiatrist designated to examine the veteran further was requested to comment on the significance, if any, in the diagnostic assessment of evidence that is indicative of behavioral changes (see M21-1, part III, 5.14c(8)(9)). And the report of the evaluation was supposed to include the complete rationale for all opinions expressed, and all special studies or tests, to include psychological testing and evaluation, were to be accomplished. 6. obtain a copy of the State of Mississippi Workers' Compensation determination and a copy of all supporting medical records considered in making that determination. 7. contact the Social Security Administration (SSA) and obtain a copy of that agency's decision awarding the veteran disability benefits, as well as copies of all records considered by that agency in making its determination. 8. schedule the veteran for a VA neurological examination to obtain a medical opinion concerning the current severity of her migraine headaches- including insofar as the frequency of them and whether they have resulted in economic inadaptability. The VA examiner also was to discuss the impact, in any, that an intercurrent head injury the veteran sustained in May 1990 had on the severity of her migraine headaches. And just as in the case of her psychiatric examination, the RO was to provide the claims folder to physician designated to examine the veteran, for a review of her pertinent medical history, and all studies, tests, etc., deemed necessary were to be accomplished. 9. readjudicate the claims for service connection for PTSD and a rating higher than 30 percent for the migraine headaches, including considering whether the veteran was entitled to a higher rating for her migraine headaches on an extra-schedular basis-pursuant to 38 U.S.C.A. § 3.321(b)(1). See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the RO completed-or at least attempted to complete-some of the directives indicated above (specifically, numbers 1, 2, 3, 4, 6 & 7), the RO did not complete (or even attempt to complete) the other directives specified (numbers 5, 8 & 9). So, to comply with the Court's holding in Stegall, the case must be returned to the RO for completion of those remaining directives. Even though, following the Board's April 1997 remand, the RO obtained additional medical evidence concerning ongoing treatment the veteran had received for her migraine headaches (on various occasions from 1995 to 1997), the RO did not have her examined-as requested by the Board. See Caffrey v. Brown, 6 Vet. App. 377 (1994). The RO also did not have her undergo a VA psychiatric evaluation, either, despite this additional evidence also showing even further diagnoses of PTSD (and of other psychiatric conditions, too-namely, a bipolar disorder and a depressive disorder, not otherwise specified). Moreover, the veteran's ex-husband submitted a supporting statement in July 1997 concerning her alleged sexual assaults (various rapes) in service, but the RO did not determine whether this evidence was sufficient to corroborate or verify her alleged stressors and, therefore, warrant an examination. So the RO must attempt to complete all of this remaining development, prior to further consideration of her claims, particularly in light of the recently enacted Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). Accordingly, the case again is REMANDED to the RO for the following development and consideration: 1. 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, 5.14(c)(9). 2. The RO should then review the file, including the July 1997 statement from the veteran's ex-husband, 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), indicating whether she 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 making this determination, the RO should address any credibility questions raised by the record. It should be borne in mind, however, that it is not necessary for her to actually prove that the incidents in question occurred, but rather, it is only necessary that the preponderance of the evidence support the conclusion that they did. See Manual M21-1, Part III, 5.14(c); see also Patton, supra. 3. Thereafter, if any claimed in-service stressor is corroborated by the evidence or if otherwise deemed warranted, then the RO should schedule the veteran for a VA psychiatric evaluation-preferably by someone who has not previously examined her-to: a) obtain a medical opinion indicating whether she currently has PTSD and, if so, b) whether there is an etiological relationship between her PTSD and a confirmed stressor in service identified by the RO. Green v. Derwinski, 1 Vet. App. 121 (1991). The VA examiner also should, to the extent possible, attempt to reconcile the various other diagnoses of record, in addition to PTSD (of a bipolar disorder, depression and a depressive disorder-not otherwise specified, and a history of drug and alcohol abuse). And since the purpose of this examination is to obtain a medical opinion concerning these dispositive issues, it is absolutely imperative that the examiner review all of the relevant evidence in the claims file-particularly the list of the stressor(s) found by the RO to be corroborated by the evidence of record, a copy of the Board's April 1997 remand, a copy of this remand, the May 1997 statement from the veteran, the July 1997 statement from her ex-husband, the report of her hospitalization at a VAMC from February to March 1994, and the report of her August 1994 VA psychiatric examination. The VA examiner should acknowledge in the report of the evaluation that this evidence was considered. The examiner should clearly set forth his/her findings and opinions in a typewritten report, citing, if necessary, to specific evidence in the record. And since the purpose of the examination is to determine the medical probability that the veteran has PTSD as a residual of her military service-and in particular sexual assaults (repeated rapes)-the examiner's report of the evaluation should contain a discussion of the evidence in this regard. Also, any diagnosis of PTSD should be in accordance with the criteria of DSM-IV. And if PTSD is diagnosed, the examiner should clearly identify the date of onset and the stressor which is deemed to be the cause of the condition. The report of the evaluation should be typewritten and associated with the other evidence on file in the veteran's claims folder. 4. The veteran should be scheduled for a VA neurological examination to obtain a medical opinion concerning the current severity of her migraine headaches- including insofar as the frequency of them and whether they have resulted in economic inadaptability. The VA examiner also should discuss the impact, in any, that the intercurrent head injury the veteran sustained in May 1990 had on the severity of her migraine headaches. And just as in the case of her psychiatric examination, the neurologic examiner should review all of the pertinent medical evidence in the claims folder; should conduct all necessary tests, studies, etc., to make the requested determinations; and should provide the rationale for all opinions expressed-citing, if necessary, to specific evidence in the record. The report of the evaluation should be typewritten for clarity. 5. The RO should review the reports of the evaluations to ensure they are in compliance with the directives of this remand. If either is not, then it should be returned for immediate corrective action. 38 C.F.R. § 4.2. 6. Upon completion of the above development, and any other development deemed warranted by the VCAA, the RO should readjudicate the claims for service connection for PTSD and for a rating higher than 30 percent for the migraine headaches-in light of all pertinent evidence of record, and all applicable laws, regulations, and case law. The RO must provide adequate reasons and bases for its decision and address all issues and concerns that were noted in this remand. The RO also must determine whether the veteran is entitled to application of the benefit-of-the- doubt doctrine and, if not, must explain why. 38 C.F.R. §§ 3.102, 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 7. If the benefits sought on appeal remain denied, the veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits-to include a summary of the evidence and applicable laws and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. However, she hereby is advised that her failure to cooperate in being re-examined likely will result in a decision unfavorable to her. See 38 C.F.R. § 3.655. The veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. C. P. RUSSELL 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).