Citation Nr: 0118687 Decision Date: 07/18/01 Archive Date: 07/24/01 DOCKET NO. 97-13 525A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Spear Ethridge, Counsel INTRODUCTION The veteran had active duty from September 1984 to January 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 1996 rating action by the Oakland, California Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant was scheduled to appear on June 8, 2001 for a personal hearing before a Member of the Board. She failed to report for that hearing. Through her representative, the veteran requested the right to reschedule her personal hearing appearance in the future. At this time the Board of Veterans' Appeals denies the appellant's motion to reschedule the hearing as adequate cause for failure to report for the hearing has not been shown. 38 U.S.C.A. § 7102 (West 1991 & Supp. 2000); 38 C.F.R. § 20.704(c)(d). This motion being denied, the Board proceeds with adjudication of the veteran's claim. REMAND The veteran has alleged that she developed PTSD as a result of a sexual assault which occurred in service. The United States Court of Appeals for Veterans Claims (Court) has stressed the necessity of complete development of the evidence if a PTSD claim is based on an alleged personal assault. See Patton v. West, 12 Vet. App. 272, 276-78 (1999). In Patton, 12 Vet. App. at 278, the Court pointed out that there are special evidentiary development procedures for PTSD claims based on personal assault contained in VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c) (Feb. 20, 1996), and former MANUAL M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995). The general MANUAL M21-1 provisions on PTSD claims in 5.14 require: "In 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, 5.14(b)(3). As to personal-assault PTSD claims, more particularized requirements are established regarding the development of "alternative sources" of information as service records "may be devoid of evidence because many victims of personal assault...do not file official reports either with military or civilian authorities." MANUAL M21-1, Part III, 5.14(c)(5). Further, the provisions of subparagraphs (8) and (9) indicate that "[b]ehavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor", that "secondary evidence may need interpretation by a clinician, especially if it involves behavior changes", and that "[e]vidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. The Court stated that when read together subparagraphs (8) and (9) show that in personal-assault cases the Secretary has undertaken a special obligation to assist a claimant producing corroborating evidence of an in-service stressor. The Board notes that the manual also provides that the PTSD stressor development letter used by ROs to solicit details concerning the in- service stressful incident may be inappropriate for this type of PTSD claim. Therefore, if the stressful incident is a personal assault, the RO is to use a special letter developed for this type of claim. The Board finds that, in this case, VA's duty to assist in the development of the claim has been not satisfied. The RO needs to complete its assistance to the veteran by following the procedures outlined in M21-1, such as sending the veteran the appropriate letter for developing secondary or alternative evidence. The Board also notes that 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, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of the VA with respect to the duty to assist, 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 the 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 Veterans Claims Assistance Act of 2000, 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, ___ (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Other changes potentially relevant to the veteran's appeal include the establishment of specific procedures for advising the claimant and his or her representative of information required to substantiate a claim, a broader VA obligation to obtain relevant records and advise claimants of the status of those efforts, and an enhanced requirement to provide a VA medical examination or obtain a medical opinion in cases where such a procedure is necessary to make a decision on a claim. The Act establishes very specific requirements for giving notice to claimants of required information and evidence (see Act, Pub. L. No. 106-475, sec. 3(a) (to be codified at 38 U.S.C. § 5103-5103A)). After receiving an application for benefits, the VA is required to notify the claimant and the claimant's representative of any information, and any medical or lay evidence not already submitted, which is necessary to substantiate the claim. The VA must include in this notice an indication of which information and evidence must be provided by the claimant and which will be obtained by the VA. If the VA is unable to obtain information, it must notify the claimant of which records have not been secured, explain the efforts made to obtain those records and describe any further action which the VA will take. If the records sought are Federal department or agency records, the VA must continue its efforts unless it is reasonably certain that such records do not exist or that further efforts to obtain them would be futile. Because of the change in the law brought about by the Veterans Claims Assistance Act of 2000, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. 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 addition, because the RO has not yet considered whether any additional notification or development action is required under the Veterans Claims Assistance Act of 2000, 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)). Accordingly, this case is REMANDED for the following: 1. The RO should complete development of the evidence required for a PTSD claim based on an alleged personal assault. See VA ADJUDICATION PROCEDURE MANUAL M21- 1, Part III, 5.14(c) (Feb. 20, 1996), and former MANUAL M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995). 2. 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. For further guidance on the processing of this case in light of the changes in the law, the RO should refer to VBA Fast Letter (November 17, 2000), and subsequent VBA Fast Letters regarding this issue, and any pertinent formal or informal guidance that is subsequently provided by VA, including, among other things, final regulations and General Counsel precedent opinions. Any binding and pertinent court decisions that are subsequently issued also should be considered. 3. If the benefit sought on appeal remains denied, the veteran and her representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. 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 appellant, who is the veteran in this case, 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. JEFF MARTIN 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).