Citation Nr: 0116920 Decision Date: 06/22/01 Archive Date: 06/28/01 DOCKET NO. 00-10 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant served on active duty from September 1975 to June 1976. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2000 rating decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). REMAND There has been a significant change in the law since the RO adjudicated this case by supplemental statement of the case in September 2000. On November 9, 2000, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (hereinafter the VCAA) was enacted into law. This law eliminated the concept of a well-grounded claim and redefined VA's obligations with respect to the duty to notify and the duty to assist. 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. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991) (where law or regulation changes after a claim has been filed, but before administrative or judicial appeal process has concluded, the version most favorable to claimant should apply). As the claim of service connection for PTSD was denied by the RO as not well grounded, and as further evidentiary development is required, as set forth below, the Board finds that this claim is entitled to readjudication on the merits at the RO-level. See Luyster v. Gober, 14 Vet. App. 186 (2000) (per curiam order) (holding that VCAA is applicable to claims denied as not well grounded) and Holliday v. Principi, 14 Vet. App. 280 (2001) (holding, inter alia, that all provisions of the VCAA are potentially applicable to claims pending on the date of the VCAA's enactment, and that concerns of fundamental fairness and fair process demand further development and readjudication under the VCAA by the lower adjudicatory authority (in this case, the RO)) (motion for en banc review denied, May 24, 2001). 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. Specifically, additional evidentiary development is in order. The Board notes that additional medical records, not currently associated with the record on appeal, may be pertinent to the proper adjudication of the appellant's claim. In her hearing testimony of May 2000 as well as in a number of personal statements, the appellant alluded to a history of private treatment in 1977 under the care of Dr. F. Dunn and Dr. F. Walker, and a history of treatment beginning in 1992 at two private facilities located in Gulfport, Mississippi (Mental Health Clinic and Gulf Oaks Hospital). The Board also notes that the medical records obtained from the Jackson-Vet Center indicate that the appellant had recently applied for benefits from the Social Security Administration (SSA), although it is unclear from various accounts given in these reports whether she filed for disability or supplemental income; she stated at her hearing in May 2000 that she was not then receiving any benefits from the SSA, but an August 2000 Vet Center report indicates that her application for SSA benefits may have been pending at the time of her May 2000 hearing. The RO should clarify this matter and obtain any records from the SSA that pertain to claims filed by the appellant for benefits from that agency. In addition, the record shows that the appellant was a member of an Army Reserve unit between November 1976 and November 1977, although other records show that she joined the Reserves in 1977 and served through 1979. Moreover, the record shows that the RO attempted to obtain her Army personnel file in January 1999, but it does not appear that any records were received in response to this inquiry. The RO should therefore take action to verify her dates of service in the Reserves and obtain any available medical/personnel records from the National Personnel Records Center (NPRC) in St. Louis, Missouri. Pursuant to the newly enacted VCAA, requisition and consideration of all available medical records as well as any records from the NPRC or other indicated Federal department or agency, such as the SSA, that might be relevant to an issue on appeal is necessary for the adjudication of the appellant's claim for disability compensation benefits. See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of Federal government-controlled records). Further, as additional evidentiary development will be required, to include stressor-verification development, as set forth below, the Board believes that the RO should have the appellant examined by VA in order to determine whether she has a DSM-IV diagnosis of PTSD based on her reported stressor and a complete review of all the evidence in the claims file. The Board notes that the regulation governing the award of service connection for PTSD, 38 C.F.R. § 3.304(f), was amended in June 1999. See 64 Fed. Reg. 32807 (June 18, 1999). The new version of the regulation is effective from March 7, 1997, and hence, as this claim remains pending on appeal, the revised version must be considered. Of significance here is the change to section 3.304(f) which eliminated the requirement for a "clear diagnosis" of PTSD and replaced it with the criteria that an award of service connection depended on whether there was medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), which the Board observes is a reference to a diagnosis made on the criteria set forth in the DSM-IV. Hence, in the Board's view, the appellate record does not at this time contain sufficient medical evidence to decide this claim. See 38 U.S.C.A. § 5103A(d)(1) and (2), as amended by the VCAA. The Board also notes that precedent holdings of the United States Court of Appeals for Veterans Claims (the Court) provide specific guidance for the adjudication of PTSD claims based on non-combat stressors, at issue in this case. See Patton v. West, 12 Vet. App. 272 (1999) (verification of non- combat stressors); Suozzi v. Brown, 10 Vet. App. 307 (1997) (sufficiency of information to verify stressors); Cohen v. Brown, 10 Vet. App. 128 (1997) and Moreau v. Brown, 9 Vet. App. 389 (1996). In the Patton case, the Court found error in the Board's decision because it did not discuss the special evidentiary procedures for the development of PTSD claims based on non-combat stressors as established by VA guidelines. Patton, 12 Vet. App. 272 (1999). Where, as in this case, a veteran-claimant did not serve in combat and the claimed stressor is not related to combat, lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Id. citing West (Carelton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). However, special development procedures for non- combat stressors are required pursuant to VA's ADJUDICATION PROCEDURE MANUAL (the M21-1) in order to provide the veteran- claimant every opportunity to verify the occurrence of the claimed stressor. See M21-1, Part III, Section 5.14(c) (Feb. 20, 1996). In light of the Court's precedent holdings, the Board finds it necessary to address the matter of whether there is sufficient corroboration of the appellant's stressor (in- service rape) upon completion of the special development procedures under M21-1, Part III, Sec. 5.14(c), and upon completion thereof, further medical development to determine whether any "behavioral changes" that occurred at or close in time to the alleged incident could possibly indicate the occurrence of the stressor, as described in detail in the M21-1. With respect to the issue of stressor-verification, it is noted that in Suozzi, the Court expressly held that a veteran need not prove "every detail" of an alleged stressor. Id. at 311. In addition, in Moreau, the Court stated that credible supporting evidence of a stressor may be obtained from service records or "other sources." Id. at 395. Accordingly, this case is REMANDED to the RO for the following development action: 1. The RO should contact the appellant and inform her that she may submit any corroborating lay and/or medical evidence she may have pertaining to treatment for her PTSD symptoms. The RO should assist the appellant in obtaining such evidence, as appropriate. If she identifies medical treatment and provides specific dates, all VA records identified in this manner that have not already been associated with the claims file should be obtained pursuant to established procedures. With regard to any private medical treatment, if identified as such, after first providing her appropriate releases to obtain such records (VA Form 21-4142), attempts to secure copies of records pertaining to any indicated private physicians and/or facilities should be undertaken. As noted above, development to this end should include specific attempts to obtain any medical treatment/evaluation records from the sources already identified by evidence in the record, specifically, the private medical treatment provided by Drs. Dunn and Walker in 1977, and at the Mental Health Clinic and Gulf Oaks Hospital facilities located in Gulfport, Mississippi (from 1992 to present). The RO should proceed with alternative search efforts for any medical records which may have been transferred to another medical facility or retired. All records received in response to the request should be associated with the claims folder. The RO should proceed with all reasonable follow-up referrals that may be indicated by the inquiry. 2. In addition, the RO should send an inquiry to the NPRC for the purpose of requesting copies of any additional medical/clinical records of any kind (inpatient, outpatient, dispensary, field station, etc.) as well as any administrative/personnel records which correspond to the appellant's period of active duty in the U. S. Army between September 1975 and June 1976 and for any period of Army Reserve/National Guard service rendered thereafter. In connection with this action, the RO should request verification of her dates of service in a Reserve/National Guard unit, and should request NPRC to search for additional service records (administrative and medical) which correspond to such service. All reasonable alternative-source searches and/or follow-up referrals that may be indicated by this inquiry should be pursued. Efforts to obtain these records should be documented and any records received in response to this request should be associated with the claims folder. 3. The RO should contact the SSA for the purpose of obtaining any records from that agency which pertain to claims filed by the appellant. The RO should obtain copies of award letters/notices, administrative/appellate decisions, hearing transcripts, if applicable, and all medical records relied upon concerning any claims/appeals filed by the appellant for SSA benefits. The RO should proceed with all reasonable follow-up referrals that may be indicated by the inquiry. All attempts to obtain records, which are ultimately unsuccessful, should be documented in the claims folder. 4. With respect to the above, all attempts to obtain records which are ultimately not obtained should be documented, and in accordance with the VCAA, § 5103A(b)(2), the RO should notify the appellant of the records it was unable to obtain, briefly explain the efforts made to obtain such records, and describe any further action that the RO will take to obtain such records. For any VA or other Federal department or agency records, the RO should, in accord with the VCAA, § 5103A(b)(3), continue its efforts to obtain any records while the case is under development on remand until it becomes reasonably certain that such records cannot be obtained because they do not exist or until it becomes reasonably certain that further efforts to obtain records from the such sources would be futile. 5. In addition, the RO should contact the appellant and inform her that may submit any other corroborating evidence she may have pertaining to alleged rape incident experienced during service. The RO should inform her that she may submit any other evidence to verify her alleged stressors from military as well as nonmilitary sources. The RO should assist the appellant in obtaining such evidence, as appropriate. In connection with this development, the RO should ensure that all appropriate special development procedures mandated by M21-1, Section 5.14(c) for verification of a non-combat stressor is fully accomplished and documented in the claims folder, to include issuance of the special development letter to the appellant advising her of the steps necessary to verify her non-combat stressor. 6. Following the above, the RO must make a specific factual determination, based upon the complete record, with respect to whether the appellant's rape stressor occurred as she claims. In rendering this determination, the attention of the RO is directed to the law cited in the discussion above. If official service records or alternative records discussed in M21-1, Part III, Sec. 5.14c corroborate the appellant's allegations, the RO should specify that information. The RO should also indicate whether any behavioral changes that occurred at or close in time to the alleged rape incident could possibly indicate the occurrence of stressor and if so should decide whether this evidence needs interpretation by a clinician. See M21- 1, Part III, 5.14c (9). 7. Upon completion of the above, the RO should schedule a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. This examination, if feasible, should be conducted by a psychiatrist who has not previously examined, evaluated or treated the appellant. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the true diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether the alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether there is a link between the current PTSD-symptomatology and the in- service stressor found to be established by the record and found sufficient to produce PTSD by the examiner. In addition, the examiner must comment on the approximate date of onset and etiology of any diagnosed psychiatric disorder as shown by the evidence of record, and in so doing, the examiner should attempt to reconcile the multiple psychiatric diagnoses and/or assessments of record based on his/her review of all of the evidence of record, particularly with respect to prior diagnoses of PTSD. Further, in line with the M21-1 provisions, the examiner is requested to provide detailed medical analysis and interpretation of the diagnoses found present on examination in light of all the evidence of record for the purpose of addressing whether any behavioral changes that occurred at or close in time to the alleged rape incident could possibly indicate the occurrence of the alleged in-service stressor. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. 8. The appellant must be given adequate notice of any requested examination, which includes advising her of the consequences of failure to report for a scheduled examination. If she fails to report for an examination, this fact should be documented in the claims folder. A copy of all notifications must be associated with the claims folder. 9. The RO must review the claims file and ensure that any and all notification and development actions applicable to the appellant's claim and required by the VCAA are completed. 10. Upon completion of the above, the RO must readjudicate the appellant's claim of service connection for PTSD on the merits and with consideration given to all of the evidence of record, after ensuring that all duty-to-notify and duty-to-assist provisions have been fulfilled. This claim must be addressed pursuant to the revised version of 38 C.F.R. § 3.304(f) and the relevant caselaw of the Court discussed above. If any benefits sought on appeal remain denied, the RO should provide the appellant and her representative an adequate supplemental statement of the case. The supplemental statement of the case must contain notice of all relevant actions taken on her as ordered by this REMAND, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. The RO should then allow the appellant an appropriate period of time for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. 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. 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).