Citation Nr: 0116269 Decision Date: 06/14/01 Archive Date: 06/19/01 DOCKET NO. 00-19 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active duty from January 1986 to July 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. REMAND The veteran contends that he has developed PTSD due to active service. He argues that this disability has developed as a result of a sexual assault that occurred during basic training. At the November 2000 hearing at the RO before the undersigned member of the Board, the veteran testified that he was sexually assaulted by several men during a field exercise in basic training. He stated that he had previously been in an altercation with one of the men. The veteran states that his job performance and his mental health began to deteriorate within a few months of this incident. He noted that he was treated at Walter Reed Army Medical Center following a suicide attempt, which he also attributes to his assault. See Transcript. There has been a significant change in the law 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 (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 App. 477 (1999), withdrawn sub nom.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 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). Because of the change in the law brought about by the VCAA, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. In addition, because 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)). Therefore, for these reasons, a remand is required. In an effort to assist the RO, the Board has reviewed the claims file and identified certain assistance that must be rendered to comply with the VCAA. However, it is the RO's responsibility to ensure that all appropriate development is undertaken in this case. The veteran's claim for entitlement to service connection for PTSD is based on the alleged occurrence of personal assaults in active service. In view of the difficulty in the verification of stressors involving personal assault, the VA has provided for special evidentiary development procedures which must be followed in the adjudication of PTSD claims involving personal assault. These are found at M21-1, Part III, 5.14 (c). The Court has held that these provisions must be followed and considered in the evaluation of PTSD claims involving assault. See Patton v. West, 12 Vet. App. 272 (1999). However, the Court also noted that the references in these provisions to stressors being supported by a preponderance of the evidence were in error, and in conflict with the provisions of 38 U.S.C.A. § 5107(b) concerning reasonable doubt. A review of the record indicates that the veteran was mailed a questionnaire requesting some of the information sought by M21-1, Part III, 5.14 (c) in October 1998. However, there is no indication that the veteran replied with the requested information. Another letter was mailed to the veteran in October 1999, again without reply. Although part of the information sought by these letters was provided by the veteran at the November 2000 hearing, the Board believes that the importance of this information to his claim should again be explained, and another attempt should be made to obtain a completed questionnaire from him. Furthermore, there is no indication contained in the June 2000 rating decision or the statement of the case that the provisions of M21-1, Part III, 5.14 (c), especially M21-1, Part III, 5.14 (c)(7) were considered in reaching a determination in this case. The Board finds that this claim must be returned to the RO to ensure consideration of these provisions. In addition, the veteran has not been afforded a VA psychiatric examination in conjunction with his claim for service connection for PTSD. The Board finds that the veteran should be scheduled for a psychiatric examination, in order to determine his current diagnosis, and to afford the examiner an opportunity to interpret the veteran's behavior in service in relation to any diagnoses of PTSD, as indicated at M21-1, Part III, 5.14 (c)(8). Finally, the veteran testified at the November 2000 hearing that he had received relevant treatment in service at Walter Reed Army Medical Center, and at Tripler Army Medical Center. He requested additional time to obtain these records. Subsequently, the veteran received relevant service medical records from Walter Reed, and submitted them directly to the Board. These records confirm that the veteran received treatment following an attempted suicide. However, there is no indication that the records from Tripler have been received. The Board finds that an additional attempt should be made to obtain these records and associate them with the claims folder. Accordingly, this case is REMANDED for the following: 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran for PTSD or any other psychiatric disabilities since discharge from active service. After securing the necessary release, the RO should obtain these records and associate them with the claims folder. 2. The RO should make another attempt to secure the veteran's service medical records regarding claimed treatment at Tripler Army Medical Center in Hawaii through official channels. If obtained, these records should be associated with the claims folder. 3. The veteran should again be mailed a questionnaire requesting the information sought by M21-1, Part III, 5.14 (c). The importance of this information to his claim should be explained to him. The veteran should be given a reasonable time to respond. 4. The veteran should be afforded a VA psychiatric examination to determine the nature and etiology of his claimed PTSD. All indicated tests and studies should be conducted. The claims folder, including personnel records, must be made available to the examiner for review before the examination. The examiner should be provided with a copy of M21-1, Part III, 5.14 (c)(7)(8), regarding interpretation of secondary evidence of the occurrence of the veteran's claimed stressors based on the veteran's behavior in service. After the completion of the examination and study of the records, the examiner should attempt to express the following opinions: 1) Based on secondary evidence of the veteran's behavior, is it as likely as not that the veteran's claimed sexual assault occurred? If the examiner believes the evidence is insufficient to express this opinion, it should be noted. 2) Does the veteran currently have a diagnosis of PTSD, or any other acquired psychiatric disability? 3) If the veteran is found to have a current diagnosis of PTSD or any other acquired psychiatric disability, is it as likely as not that this disability is the result of active service? The reasons and bases for these opinions should be included in a typewritten report. 5. The RO must review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is 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. 6. The RO should fully consider the provisions of M21-1, Part III, 5.14 (c) in relation to the veteran's claim for service connection for PTSD. Any additional development indicated by these provisions should be completed. The steps taken in consideration of these provisions should be fully documented and placed within the claims folder. Afterwards, the RO should again review the record. Following the review, the RO should reconsider the issue of entitlement to service connection for PTSD. If the benefit sought on appeal remains denied, the veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The rating decision and supplemental statement of the case should contain M21- 1, Part III, 5.14 (c), as well as a discussion of these provisions, in particular the application of M21-1, Part III, 5.14 (c)(7), as to why or why not the alleged stressors are verified. The RO should be mindful that a preponderance of the evidence is NOT required to verify the stressors, and that there only needs to be an approximate balance of the positive and negative evidence pertaining to verification of the stressors. 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. The veteran 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). This claim 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. ROBERT E. SULLIVAN 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).