Citation Nr: 0116844 Decision Date: 06/21/01 Archive Date: 06/28/01 DOCKET NO. 01-03 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Antonio E. Bendezu, Attorney At Law ATTORNEY FOR THE BOARD K. L. Wallin, Associate Counsel INTRODUCTION The veteran served on active duty from August 1959 to July 1962. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which denied the benefit sought on appeal. REMAND The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet. App. 268 (1998). Although the instructions in this remand should be carried out in a logical chronological sequence, no instruction in this remand may be given a lower order of priority in terms of the necessity of carrying out the instruction completely. Additional action is required prior to appellate disposition. The record raises problems in development of the veteran's stressors in connection with his claim of entitlement to service connection for PTSD. This appeal arises out of the veteran's claim that he currently has PTSD, as a direct result of his active military service. The RO has denied these claims essentially based on a determination that there has been no verification of the veteran's claimed in-service stressor and thus, there exists no nexus between the veteran's active military service and his currently diagnosed PTSD; and that therefore the claim was not well-grounded. 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. This diagnosis repeatedly appears in VA outpatient treatment records dated between November 1996 and May 1999, as well as a VA examination conducted in July 1999. The veteran does not contend that his stressors are based on combat related incidents. Rather, the veteran claims that his PTSD is etiologically related to a sexual assault that occurred during the time he was stationed in Germany and subsequently being set on fire by his attacker. However, the sexual assault stressor noted in the various treatment records and described by the veteran has not been verified. A preliminary review of the veteran's service medical records does not indicate treatment for sexual assault or burns. Recent VA treatment records have made findings that the veteran's PTSD is related to a history of sexual abuse in service. The diagnosis was based solely on a history as related by the veteran. A diagnosis that relates any current disorder to service, which is based on a history provided by the veteran, 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. 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). 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 March 2000, the RO sent the veteran a personal-assault development letter, requesting that he complete a questionnaire about the claimed incident. The letter did not specifically ask the veteran to: describe the in-service incident; to name the city, town, country or military installation where it took place; the specific dates upon which the incident occurred; or the units he was assigned and the dates of each assignment. Further, the RO did not explicitly inform the veteran that he could submit evidence of behavioral changes that occurred at the time of the incident, to include: lay statements to show increased use or abuse of military leave; lay statements to describe episodes of depression, panic attacks or anxiety; evidence of treatment for injuries around the time of the claimed trauma but not reported as a result of the trauma; or evidence of the breakup of a primary relationship. See Manual M21-1, Part III, 5.14(c)(7). In April 2000, the veteran submitted a response, in which he provided some details regarding the claimed sexual assault. In addition, he provided two lay statements, one from a friend and the other from his son-in-law. 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. Thus, additional attempts to verify the veteran's claimed in-service stressors must be made. The claims file also contains a list of dates and times when the veteran had psychiatric appointments at the VA Medical Center (VAMC). The list received in February 2000 indicates that the veteran was seen at various times at the VAMC from October 1997 to February 2000. The record contains treatment records dated between November 1996 to May 1999. Records for May 1999 to February 2000 are not contained within the veteran's claims file. These records must be obtained in order to fairly decide the merits of the veteran's claim on appeal. Further, 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 claim, further development is necessary. 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 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). 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, to include VA outpatient treatment records dated between May 1999 and February 2000 as indicated in the list containing dates of treatment submitted by the veteran in February 2000. 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 must read the entire remand, to include the explanatory paragraphs above the numbered instructions. 2. The RO should assure that copies of all current and relevant records of treatment for PTSD are associated with the veteran's claims file, to include VA outpatient treatment records dated between May 1999 and February 2000. 3. The RO should contact the veteran with notice of the purpose of this remand and afford him another opportunity to provide a statement containing as much detail as possible regarding the stressors to which he was exposed during his period of service. He should be asked to provide specific details of the claimed stressful events during service, such as dates, places, detailed descriptions of the events, his service units, duty assignments and the names and other identifying information concerning any individuals involved in the events. He should be told that the information is necessary to obtain supportive evidence of stressful events and that he must be specific as possible because without such details an adequate search for verifying information cannot be conducted. 4. The RO should also develop and attempt to verify stressors related to alleged sexual assault in service, following the applicable procedures in Manual M21-1, Part III, paragraph 5.14(c). See Patton v. West, 12 Vet. App. 272 (1999). 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. After the development requested above has been completed, the RO should review the veteran's claims folder and ensure that all the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action should be taken. 7. Once the foregoing has been completed, the RO should again readjudicate the veteran's claim of entitlement to service connection for PTSD. In the event that the claim on appeal is not resolved to the satisfaction of the veteran, he should be furnished with a Supplemental Statement of the Case and given the opportunity to respond thereto. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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). 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. G. H. SHUFELT 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).