Citation Nr: 0114717 Decision Date: 05/25/01 Archive Date: 05/30/01 DOCKET NO. 00-09 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for schizoaffective disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The veteran served on active duty from July 1958 to July 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO), which denied the benefits sought on appeal. REMAND This appeal arises out of the veteran's claim that he currently has PTSD and schizoaffective disorder, as a direct result of his active military service. The RO has denied these claims essentially based on a determination that there is no medical evidence of an etiological nexus between the veteran's active military service and his currently diagnosed PTSD or schizoaffective disorder; and that therefore the claims were not well-grounded. Generally, a determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). Certain chronic disabilities such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (2000). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence verifying that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2000). In the present case, the veteran has been diagnosed as having PTSD and schizoaffective disorder. These diagnoses have been repeated in various VA treatment records dated in the later 1990's. The veteran's service personnel records reflect that he received no awards or decorations indicative of combat service, and his listed military occupational specialty was cook. The veteran does not contend that his stressors are based on combat related incidents. Rather, the veteran claims that his psychiatric symptomatology is etiologically related to a sexual assault that occurred during basic training in service. However, the sexual assault stressor noted in the various treatment records and described by the veteran has not been verified. The veteran maintains that treatment during service in August 1958 was actually treatment for the result of his assault, even though the record shows complaints of back pain after falling off a ladder. In this regard the veteran has pointed to a follow- up treatment record that month, which noted that the veteran had a markedly exaggerated emotional overlay. However, review of the cited treatment record shows no indication that the veteran's complaints were related to a sexual assault; and none of the remainder of the veteran's service records indicate that a sexual assault occurred. The veteran's own statements cannot, as a matter of law, establish the occurrence of non-combat stressors. See Zarycki v. Brown, 6 Vet. App. 91 (1993). Recent VA treatment records have made findings that the veteran's schizoaffective disorder and PTSD were related to a history of sexual abuse in service. The Board notes that a diagnosis based solely on a history as related by the veteran, as it relates any current disorder to service, constitutes no more than a transcription of a lay history, and therefore is not thereby transformed into competent medical evidence of a relationship between service and a current disorder. See LeShore v. Brown 8 Vet. App. 406 (1995). Further as noted above, the veteran's diagnosis of PTSD must be linked, by medical evidence, to a verifiable in- service stressor in order for service connection to be warranted. Medical nexus evidence is insufficient, in and of itself, to predicate the grant of service connection for PTSD. See Moreau v. Brown, 9 Vet. App. 389 (1996). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals, prior to March 1, 1999) (hereinafter, "the Court") has held that provisions in the VA Adjudication Procedure Manual M21-1 (Manual M21-1) regarding PTSD and personal assault claims are substantive rules, with the equivalent weight of VA regulations. Patton v. West, 12 Vet. App. 272, 277 (1999). As such, the Board must consider those provisions when adjudicating personal-assault PTSD claims, like in the present case. Id. The general Manual M21-1 provisions on PTSD claims in paragraph 5.14 require that "[i]n 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 5.14(b)(3). Id. at 278. As to personal assault PTSD claims, more particularized requirements are established, which are set forth in Manual M21-1, Part III, paragraph 5.14(c). Those provisions acknowledge that veterans claiming service connection for personal assault face unique problems documenting their claims. Therefore, it is critical to develop these claims by seeking alternative sources of information, such as medical records, police reports, testimonial statements from confidants, copies of personal diaries, etc. Id. at 278-279. In order to gather such information, the Manual M21-1 indicates that a specific development letter must be provided to the veteran. A review of the record reveals that in July 1999, the RO sent the veteran a personal-assault development letter, requesting that he complete a questionnaire about the claimed incident. In July 1999, the RO received the veteran's response, in which he provided some details regarding the claimed sexual assault. It appears, however, that the veteran did not completely answer or fully address all of the queries contained in the request for information in support of his PTSD claim. In this regard, the Board notes that the veteran's own statements and testimony cannot, as a matter of law, establish the occurrence of non-combat stressors. See Dizoglio v. Brown, 9 Vet. App. 163 (1996). Additionally, the Board notes that during the pendency of this appeal, there was an important change in the law pertaining to veteran's benefits, which took place 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 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). However, as the RO has not yet considered whether any additional notification or development action is required under the VCAA, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a 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)). In light of the requirements outlined in VCAA for assisting the veteran establish his claims, the Board believes that further development is necessary. The Board believes that the veteran should be provided a further opportunity to provide any additional information that may assist in verifying the veteran's claimed stressor involving a sexual assault during basic training in service. Following the veteran's response to the letter, appropriate development should be undertaken to verify the veteran's claimed stressor. The Manual M21-1 provides that if the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an in- service stressful incident. Behavioral changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA psychiatrist. Manual M21-1, Part III, 5.14(c). The veteran has received VA psychiatric treatment in the late 1990's. However, there has been no VA examination which takes into account the records of prior medical treatment to provide an opinion as to whether there is a nexus between the claimed psychiatric disabilities and service. The duty to assist includes conducting a thorough and contemporaneous medical examination that takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); 38 C.F.R. § 4.2 (2000). Therefore, the veteran should be requested to identify any health care providers who have treated him since service for PTSD and schizoaffective disorder. Thereafter, the veteran should be afforded a VA examination with respect to this claim. Finally, the Board notes in this connection that in a December 1998 letter, the Social Security Administration (SSA) noted the veteran was awarded Supplemental Security Income (SSI) disability payments based on his being disabled since November 1998. In order for VA to properly assist the veteran, all SSA disability decisions and related medical records should also be obtained. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Therefore, consistent with its duty to assist, the Board orders below for the RO to request details from the veteran that would facilitate an attempt to verify any stressors asserted by the veteran; and for the RO to attempt to verify the reported stressors by all appropriate means as indicated. The RO must subsequently obtain any pertinent treatment or examination records, and then afford the veteran an examination to determine whether any diagnosed psychiatric disability is related to service; and whether a diagnosed PTSD is linked to any verified in-service stressors. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3, 114 Stat. 2096, 2096-98 (2000) (to be codified as amended at 38 U.S.C. §§ 5103 and 5103A). The RO also should generally take all further appropriate action to ensure compliance with the provisions for notice and assistance to the claimant of the recently enacted VCAA. Accordingly, this case is REMANDED for the following: 1. The RO is requested to review the entire file and undertake any development necessary to comply with the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 (2000). 2. The RO should obtain and associate with the claims folder any SSA determination(s) for the award of Social Security disability or SSI benefits, and medical records underlying such determination(s). 3. The RO should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him since service for PTSD and/or schizoaffective disorder. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request, which have not been previously secured. 4. The RO should contact the veteran with notice of the purpose of this remand and afford him another opportunity to provide any additional specific information pertaining to alleged stressful events of service, particularly informing him of the probative value of any detailed information regarding dates, places, detailed descriptions of events, and/or identifying information concerning any other individuals involved in the events, including their names, ranks, units of assignment or any other identifying detail. The RO should ensure that all special development required under the provisions of M21-1, Part III, paragraph 5.14(c) has been completed. 5. The regional office should make arrangements for examinations of the veteran by two trained mental health professionals experienced with schizoaffective disorder and PTSD matters. Each of these examiners should review the veteran's various records, including the veteran's medical records, his accounts of the claimed stressor(s), and the efforts to document such stressors. Each examiner should examine the veteran separately. The psychiatric examinations should reflect consideration of the veteran's social, industrial, and military history, as well as reporting the clinical findings upon which any and all diagnoses are based. The examiners should confer and determine the nature of any psychiatric disability that is present, specifically whether a diagnoses of schizoaffective disorder and PTSD are supported. If the diagnosis of PTSD is confirmed, the linkage of the PTSD to the veteran's service and any verified stressors in service, should be fully discussed. If a schizoaffective or other psychiatric disorder is confirmed, the examiners are requested to comment on any etiological relationship between such diagnosed disorder(s) and service. It is essential that the claims folder be made available to the examiners for their review prior to and during the examinations. 6. When the above action has been completed, the regional office should again review the questions of entitlement to service connection for PTSD and schizoaffective disorder, consistent with all laws, regulations, and U.S. Court of Appeal for Veterans Claims decisions. If the denial of the veteran's claims is continued, a supplemental statement of the case should be furnished to the veteran and his representative. No action is required of the veteran unless and until he receives further notice. The purpose of this REMAND is to obtain clarifying data, and to provide due process. The Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. 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). L. HELINSKI 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).