Citation Nr: 0120051 Decision Date: 08/03/01 Archive Date: 08/10/01 DOCKET NO. 94-09 814 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Mary A. Royle, Attorney at Law WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran had active military service from June 1965 to October 1966. This matter originally came before the Board of Veterans' Appeals on appeal from a rating action of September 1993, by the Hartford, Connecticut, Regional Office (RO), which denied service connection for PTSD. The veteran appealed and was afforded a personal hearing at the RO in May 1994. In April 1996 and June 1998, the Board remanded the case to the RO for further development. The RO affirmed its denial of the claim for service connection for PSTD in December 1997 and April 1999, respectively. By a decision issued in March 2000, the Board denied the claim for service connection for PTSD. The veteran then appealed the matter to the United States Court of Appeals for Veterans Claims. While his case was pending at the Court, the veteran's attorney and VA's General Counsel filed a Joint Motion requesting that the Court vacate the Board's March 2000 decision and remand the PTSD claim for further development and readjudication. In October 2000, the Court issued an Order granting the Joint Motion and vacating the March 2000 Board decision. The Board notes that in March 2001, the veteran's attorney submitted additional documentary evidence in support of his claim. This evidence includes additional medical records and excerpts from a book about brutality in the U.S. Marines. The Board believes this evidence to be relevant to the issue on appeal. In general, any pertinent evidence which is accepted by the Board must be referred to the RO for review and preparation of a supplemental statement of the case, unless this procedural right is waived by the veteran. 38 C.F.R. § 20.1304(c) (2000). In this instance, the veteran's attorney did submit a waiver of initial RO consideration of this evidence. However, as will be discussed in greater detail below, the Board believes this case must be remanded for other reasons, and thus, it is appropriate to simultaneously direct the RO to also consider all additional evidence received by the Board since this case was certified for appeal. REMAND In reaching our decision of March 2000, the Board determined that the veteran was not a combat veteran, and that he had not identified PTSD-inducing stressors which had been verified or could be independently corroborated. Several incidents which the veteran described as having occurred in service, including his ship's steaming through a hurricane, his ship's colliding with a submarine, his ship's being struck by a torpedo which inflicted damage to the propeller, and his witnessing the death of a fellow marine during a barroom fight in St. Thomas, USVI, were not shown (and, indeed, were not even alleged) to have occurred in combat situations. Indeed, he has acknowledged that he was not involved in combat against an enemy of the United States; all the above incidents, assuming, arguendo, that they actually occurred, appear to have occurred far from the contemporaneous conflict in Vietnam, with only other U.S. vessels and/or military personnel in the area. The gravamen of the claim for PTSD is the veteran's contention that, while being confined in the 3rd Naval District Brig in Brooklyn, NY, in 1966 for several charges of unauthorized absence, he had been the victim of physical and psychological torture and threats perpetrated by a marine guard. In addition to alleged physical and sexual assault upon his person, the veteran reported that the guard who tortured him told him that he and his friends had gone to the veteran's house and raped his wife and children. The veteran also stated that he had seen other prisoners die from suicide and murder. The March 2000 decision of the Board determined that adequate attempts had been made by the RO to verify the stressor events cited by the veteran, and that none had been verified. Although the U.S. Marine Corps was able to verify for the RO that an individual named by the veteran had been a guard at the Brooklyn Navy brig during the veteran's confinement there, no evidence of wrongdoing or discipline involving that individual was found. In addition, the Marine Corps turned up no evidence to corroborate the veteran's assertion that he had witnessed suicide and murder among his fellow prisoners. Consequently, the Board concluded that the evidence did not establish that the veteran suffers from PTSD which is related to any in-service stressor. The Board also concluded that, even though a diagnosis of PTSD had been noted in the post-service medical records (among other psychiatric disorders, related by physicians to numerous marital, financial, and health problems arising after service), the evidence did not serve to establish that the veteran had experienced an in-service stressor upon which a diagnosis of service-connected PTSD could be predicated. Thus, service connection for PTSD was denied. Rather than reiterate all the facts, and the reasons and bases for our previous decision, here, we refer the reader to the March 2000 decision. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with the provisions of 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in- service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2000); Cohen v. Brown, 10 Vet.App. 128 (1997). Insofar as the veteran contends that he has PTSD due to a non-combat stressor, namely physical/sexual assault in service, the Court has held that the requirement of "credible supporting evidence" means that the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet.App. 389 (1996); Dizoglio v. Brown, 9 Vet.App. 163 (1996). The VA Adjudication Procedure Manual, M21-1, provides that the required "credible supporting evidence" of a noncombat stressor "may be obtained from" service records or "other sources." M21-1, part VI, para. 7.46. In Patton v. West, 12 Vet.App. 272 (1999), the Court discussed the relevance of the above M21-1 provisions. In that case, the Court observed that such provisions provide, among other things, that VA's general PTSD stressor development letter is inappropriate for this type of claim, and stated instead that the RO should rely upon special letter formats expressly developed for use in personal assault claims. See M21-1, part III, para. 5.14c (4, 6 and 7). Specific to claims based upon personal assault, M21-1, part III, para. 5.14c provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred, to include statements from family members or clergy, as well as other evidence of behavioral changes, as may be established by personnel and other records and lay statements. The Joint Motion indicates that "the parties acknowledge that VA has made several unsuccessful attempts to develop credible supporting evidence to corroborate the claimed stressors." However, the Joint Motion also noted that there had been verification that an individual, having the name provided by the veteran as his assailant, was assigned as a guard at the U.S. Naval Base in Brooklyn at the time in question. Therefore, the Joint Motion expressed the concern that it was unclear whether there had been adequate compliance with the Manual M21-1 provisions regarding development of claims based upon personal assault. Consequently, it was determined that further development was required in order to properly adjudicate the veteran's claim of entitlement to service connection for PTSD. Subsequent to the execution of the Joint Motion and its approval by the Court, 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), Public Law No. 106-475, 114 Stat. 2096 (2000). The VCAA provides that the Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096-97 (2000) (to be codified at 38 U.S.C. § 5103A). In light of the change in the law, and the concerns expressed in the Joint Motion, another remand is required for the RO to advise the veteran of general evidentiary requirements, that the claimed assault(s) must be verified, and to inform him as to the types of evidence which may be probative of his claim, as indicated in the aforementioned provisions of M21-1 and the Patton case. Therefore, the veteran should be given the opportunity to submit a full and detailed list of: (1) any evidence of behavioral changes which may support his claim, to include any pertinent records from his reserve unit; and (2) a list of fellow marines and/or civilians who may be able to provide lay statements as to either the occurrence of the claimed stressor, or changes in the veteran's observed behavior (the Board stresses that, under M21-1, Part VI, 11.38b (2) the changes in his observed behavior must have been witnessed "at the time of the claimed stressors" (i.e., reasonably close in time to the claimed stressors). The RO shall notify the veteran if it is unable to obtain records with respect to the claim. The notification must identify the records the RO is unable to obtain; explain the efforts that the RO made to obtain those records; and, describe any further action to be taken by the RO with respect to the claim. VCAA, supra. The RO may find the need to provide the veteran with another VA psychiatric examination, if such is required by the state of the record after evidence referred to above has been received and associated with the veteran's claims folder. The Veterans Claims Assistance Act of 2000 provides that the duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. In view of the foregoing, this case is hereby REMANDED to the RO for the following actions: 1. With appropriate recognition that he is represented by counsel, and with appropriate coordination with counsel, the RO should contact the veteran and request that he submit a list (of names, dates, and addresses) for all alternative objective sources that may establish the occurrence of the claimed stressor(s) described as physical and sexual assaults, or other torture in service. This should include a list of any fellow marines and/or civilians, and their addresses, who may be able to provide lay statements as to the occurrence of the claimed stressor(s), and/or changes in his behavior at the time of the claimed stressor(s). The assistance of the veteran and his attorney in securing such records should be enlisted, as needed. The veteran should be advised that this information is vitally necessary to obtain supportive evidence of the claimed stressor event(s). 2. The RO should ensure that its efforts conform to all relevant provisions of Manual 21-1 regarding development in PTSD claims based on personal assault, to include undertaking all reasonable efforts to locate any witnesses identified, and, if located, to obtain statements from them regarding their knowledge of the veteran's alleged in-service stressors. Each statement should describe exactly what the person observed and mention specific dates and places, and, if possible, other witnesses. A declarant who was on active duty at the time discussed should include his or her service number and military unit. The veteran should also submit copies of any personal diaries or journals pertaining to the occurrence of any claimed stressors. The veteran should be advised that this information is vitally necessary to obtain supportive evidence of his claimed the stressor event(s). 3. If, after undertaking the development set forth above, the RO determines that there is adequate corroboration of the veteran's having been physically and/or sexually assaulted in service, or otherwise tortured, he should be accorded a VA psychiatric examination to ascertain the presence or absence of PTSD, and, if present, whether it is related to one or more stressor events documented or otherwise corroborated as having occurred in service. a. In any request for such an examination, the RO should provide for the examiner a description of the stressor event(s) which have been verified to the satisfaction of the RO. This is necessary because, while the physician is responsible for the diagnosis, any diagnosis of PTSD based upon an in-service stressor must be supported by a stressor which has been satisfactorily verified by the RO. If the RO determines that the reported assault in service is not corroborated by independent evidence, the above- noted VA psychiatric examination need not be conducted. b. If an examination is conducted, the examiner must review the claims folder, including this Remand, prior to the examination and so state in his/her report. If a diagnosis of PTSD is deemed appropriate, then the examiner should explain how the diagnostic criteria of the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and one or more of the in-service stressors found to be established by the record. It would be helpful if the examiner addresses and distinguishes, if feasible, the post-service stressors and the non-PTSD diagnoses which have been reported in the record. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the aforementioned development action has been conducted and completed in full. If any requested development is not undertaken or is incomplete, appropriate corrective action is to be implemented. See Stegall v. West, 11 Vet.App. 268 (1998). 5. The RO should then readjudicate the veteran's claim of service connection for PTSD, based on all pertinent evidence of record. The RO should provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, and specifically to Manual M21-1. In doing so, the RO must address all issues and concerns that were noted in this REMAND. 6. If the benefits sought by the veteran continue to be denied, he and his attorney must be furnished with a supplemental statement of the case and given an opportunity to submit written or other argument in response thereto before his case is returned to the Board for further appellate consideration. The purposes of this REMAND are to comply with an order of the Court and to ensure that all due process requirements are met; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet.App. 104, 108 (1996); Booth v. Brown, 8 Vet.App. 109 (1995); Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). 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. ANDREW J. MULLEN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a final 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 final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2000).