Citation Nr: 0116994 Decision Date: 06/25/01 Archive Date: 07/03/01 DOCKET NO. 99-02 642 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD) REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD K. Osborne, Counsel INTRODUCTION The veteran had active military service from October 1968 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1998 rating decision by the RO which denied service connection for PTSD. REMAND The Board observes that Veterans Claims Assistance Act eliminates the concept of a well-grounded claim, enhances the VA's duty to assist a veteran in developing the facts pertinent to a claim, and expands the VA's duty to notify the veteran and his representative, if any, concerning the aspects of claim development. This change in law is applicable to all claims filed on or after the date of enactment of the law, or filed before the date of enactment and not yet final as of that date. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114 Stat. 2096 (2000) (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107). In August 1997, the RO received the veteran's claim of service connection for PTSD. In connection with the claim of service connection, she submitted a statement outlining her claimed stressful events in service. For the most part, she reported incidents in which she was sexually harassed. She also reported an incident in which a Navy diver sexually and physically assaulted her. In her substantive appeal dated in January 1999, the veteran reported that she was sexually abused as a child by her father and by her brother. She also related that her father physically abused her. When a claim of service connection for PTSD is based on an alleged personal assault, VA has a special obligation to assist the veteran in developing the claim. See Patton v. West, 12 Vet. App. 272 (1999). In this regard, the Court noted that VA's Adjudication Procedure Manual M21-1 (Manual M21-1), Part III, 5.14(c) provides very specific requirements for assisting the veteran in these types of cases. The additional assistance required is due to the unique circumstances and inherent difficulty often involved in substantiating and documenting personal assault claims. Such assistance includes providing an opportunity to submit "alternative evidence" supporting her allegations, since the service records "may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities." See VA's Adjudication Procedure Manual M21-1 (Manual M21-1), Part III, 5.14(c)(5). Such alternative source evidence may 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. Other forms of alternative source evidence may 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. In the instant case, the veteran has not be given notice that alternative evidence may be submitted for the purpose of corroborating her claimed stressors. If additional evidence is submitted or otherwise obtained which corroborates the claimed stressor, the veteran should undergo a VA psychiatric examination to obtain a medical opinion as to whether there is an etiological relationship between her current PTSD and the alleged assault/harassment in service. The examiner should also comment on the impact of the veteran's preservice sexual and physical abuse. See Green v. Derwinski, 1 Vet. App. 121 (1991). In this regard, it is imperative that the examiner be given the opportunity to review the file, so that all of the veteran's history shown in the records is considered. To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to this claim, the case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and obtain information (names, addresses, dates) concerning all VA or non-VA examinations and treatment received by her for PTSD since her discharge from service. The RO should then contact the medical providers and, following the procedures of 38 C.F.R. § 3.159, obtain copies of all related medical records which are not already on file. 2. The RO should contact the veteran in writing for the purpose of advising her of the evidence needed to substantiate her claim for service connection for PTSD based on governing laws and regulations, and VA's Adjudication Procedure Manual M21-1 (Manual M21-1), Part III, 5.14(c). The RO should also advise the veteran of her right to submit any additional argument and/or evidence in support of her claim of service connection for PTSD. 3. The veteran must also be requested to submit a comprehensive written statement containing as much detail as possible regarding the in-service sexual assault and harassment and any other stressor to which she alleges she was exposed to in service and which led to the onset of PTSD. Specific details of the claimed stressful events during service, such as the dates of all incidents, locations of the incidents, and the full names of those involved should be requested. The veteran must be advised that this information is necessary to obtain supportive evidence of her claimed stressors, and that she must be as specific as possible because without such details, adequate research for verifying information cannot be conducted. She must also be advised to obtain and submit any verifying data from individuals who might have knowledge of the in-service stressors which is claimed to have led to the onset of PTSD, including statements from fellow servicemen or family members, including any current or former spouse. 4. The RO should also ask the veteran to furnish a listing of any alternative sources from which pertinent evidence concerning the alleged service incident could be obtained. If the veteran provides sufficient identifying information in this regard, then an attempt to obtain such evidence should be made by the RO. The RO should follow all applicable procedures in VA's Adjudication Procedure Manual M21-1 (Manual M21-1), Part III, 5.14(c). Any additional evidence submitted by the veteran or otherwise obtained should be associated with the claims folder. In particular, the veteran should respond to the following with as much specificity as possible: (a) Was any medical care sought from service department or civilian medical personnel immediately following the alleged inservice physical/sexual assault or in the months following the incident? (b) Was the incident ever reported to civilian or military authorities? If so, give detailed information concerning the place where it was reported and the name(s) of the people who took the report. (c) Were the services of a crisis intervention center ever sought? (d) Were family members, roommates, fellow service members, or clergy told of the claimed inservice sexual/physical assault. If so, the veteran should be advised to get statements from these individuals and such statements should indicate the date that the veteran shared her claimed service trauma with them. (e) Were there any behavioral changes following the incident, including but not limited to (i) a visit to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; (ii) a sudden request for a change in military occupational specialty or duty assignment; (iii) the occurrence of episodes of depression, panic attacks or anxiety but no identifiable reasons for the episodes; (iv) substance abuse involving alcohol or drugs; (v) increased use of leave without immediate reason; (vi) changes in performance evaluations; (vii) increased or decreased use of prescribed or over-the-counter medications; (viii) disregard for military or civilian authority; (ix) obsessive behavior such as over or under eating; or (x) unexplained economic or social behavior changes? 5. If the RO determines that there is evidence of behavior changes at the time of the alleged incident that 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 the VA's Adjudication Procedure Manual M21-1 (Manual M21-1), Part III, 5.14(c) (9). 6. The RO should then review the file and make a specific written determination, in accordance with the provisions of 38 C.F.R. § 3.304(f) (2000) and VA's Adjudication Procedure Manual M21-1 (Manual M21-1), Part III, 5.14(c) with respect to whether the veteran was exposed to a stressor, or stressors, in service, and, if so, the nature of the specific stressor or stressors established by the record. 7. Thereafter, if the evidence corroborates a claimed in-service stressor, the RO should schedule the veteran for a VA psychiatric examination to determine the nature and etiology of any PTSD found. The claims file, a separate copy of this remand, and a list of the stressor(s) found by the RO to be corroborated by the evidence must be provided to the examiner for review. The examiner should specifically state on the report whether the claims file was reviewed in connection with the report. The psychiatric examiner must offer a professional opinion, with full supporting rationale, as to the following: (a) Is it at least as likely as not, based on clinical observations made to date and a review of any behavioral changes noted by the record that the veteran was the victim of a personal/sexual assault in service and/or a victim of a personal/sexual assault before service? (b) Does the veteran have PTSD meeting the criteria of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994), and, if so, is it at least as likely as not that the veteran's PTSD is the result of an in-service personal/sexual assault? The examiner should comment on whether PTSD pre- existed service and if so, whether her PTSD underwent an increase in severity in service due to any incident thereof? If so, the examiner must state whether such increase was due to the natural progress of the disability? If the veteran is found to have PTSD, the examiner should report the date of onset and the stressor(s) that are deemed to be the cause of the condition should be clearly indicated in the examination report. 8. Following the completion of the foregoing actions, the RO should review the examination report. If such report is not in complete compliance with the instructions provided above, appropriate action should be taken to return such examination for any and all needed action. 9. 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 with respect to the veteran's claim of service connection for PTSD. 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. 10. After the development requested above has been completed, the RO should again review the claim. If the benefit sought on appeal remains denied, the veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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 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. DEBORAH W. SINGLETON 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).