Citation Nr: 0120940 Decision Date: 08/16/01 Archive Date: 08/17/01 DOCKET NO. 99-10 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder and post- traumatic stress disorder. 2. Entitlement to service connection for bilateral shin splints with bone deterioration. 3. Entitlement to service connection for a lower back condition. 4. Entitlement to service connection for bilateral arthritis of the knees. 5. Evaluation of service-connected migraine headaches, currently rated at 30 percent. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The appellant had active duty service from April 1975 to April 1979, and from January 1982 to September 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the appellant's claims seeking service connection for post-traumatic stress disorder (PTSD), bilateral shin splints with bone deterioration, a lower back condition, and bilateral arthritis of the knees. At that time, the RO also granted service connection for migraine headaches, and assigned a noncompensable evaluation. The veteran appealed all of the denials of service connection, as well as the evaluation of her migraines. In July 2000, after additional evidence was received, the RO increased the veteran's evaluation for her migraines to 30 percent. However, since this increase did not constitute a full grant of the benefit sought, the evaluation issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). For the reasons provided below, the Board has determined that the veteran's claim for PTSD is more accurately characterized as a claim for an acquired psychiatric disorder, to include dysthymic disorder and PTSD. The veteran has raised the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). This claim has not been adjudicated by the agency of original jurisdiction, and is referred to the RO for appropriate action. REMAND In October 1998, the RO denied the veteran's claims for PTSD, bilateral shin splints with bone deterioration, a lower back condition, and bilateral arthritis of the knees, as not well grounded. In a supplemental statement of the case, dated in January 2001, the RO affirmed its October 1998 decisions on this basis. The Board 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 (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). Because of the change in the law brought about by the VCAA, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. In addition, because 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); VAOPGCPREC 16-92. Therefore, for these reasons, a remand is required. With regard to the claim for PTSD, a review of the transcript from the veteran's September 1999 hearing shows that she veteran asserts that she has PTSD that was caused by being raped by the same man on two occasions during service. The first occasion was while she was stationed in Barstow in 1976, shortly after completion of boot camp (service medical records indicate that she was stationed at the Marine Corps Logistical Support Base). She testified that her "boss" knew about the sexual assault, as well as a fellow Marine. She further testified that about three months later, she found out that she was pregnant and had an abortion at the base dispensary. In other testimony, she stated that the second assault occurred about three to four months later, and that she received medical treatment at her base shortly thereafter. She stated that she did not report either of the sexual assaults. She has also made (otherwise unspecified) allegations of harassment by other women during service. See VA PTSD examination report, dated in May 1998. Service medical records include a December 1976 report which indicates that the veteran was three months' pregnant and that she wanted to terminate her pregnancy. She gave a history of a therapeutic abortion in November 1975. The assessment was intrauterine pregnancy, of eight to ten weeks' duration. She was scheduled for reexamination, and probable admission, on December 27th. See also service medical report, dated in February 1977 (indicating that the veteran had an abortion on December 27, 1976). As for psychiatric diagnoses during service, a service medical report, dated in September 1978, contains a diagnosis of situational depression. An August 1990 service medical report contains a diagnosis of stress-induced anxiety. The veteran's separation examination report, dated in September 1990, notes that she was being followed for depression. The first post-service diagnosis of an acquired psychiatric disorder is found in a May 1998 VA PTSD examination report, which contains a diagnosis of an adjustment disorder. The claims file does not currently contain a diagnosis of PTSD, and there is no post-service record of treatment for psychiatric symptoms. However, a VA mental disorders examination report, dated in January 2001, contains an Axis I diagnosis of "dysthymic disorder related to sexual trauma," and an Axis IV diagnosis noting a sexual assault during service, and financial problems due to an inability to work. These diagnoses are evidence of a nexus between a psychiatric disorder and service. See Hernandez v. Toyens, 11 Vet. App. 379 (1998). Other evidence in the claims file includes a lay statement from the veteran's sister. The Board notes that a recent decision by the Court, Patton v. West, 12 Vet. App. 272 (1999), clearly alters the landscape in the adjudication of claims of service connection for PTSD based upon personal assault. In Patton, the Court emphasized that statements contained in prior decisions indicating that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'" of a claimed stressor and that "[a]n opinion by a mental health professional based on a post- service examination of the veteran cannot be used to establish the occurrence of the stressor," were made in the context of discussing PTSD diagnoses other than those arising from personal assault. Id. at 280; see also Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). With regard to personal assault cases, the Court pointed out that "VA has provided special evidentiary development procedures, including the interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis." Id. (citing VA Adjudication Procedure Manual M21-1 (M21-1), Part III, 5.14c (8), (9)). The Court has also held that these provisions of M21-1, which provide special evidentiary procedures for PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations. See YR v. West, 11 Vet. App. 393 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997). Specifically, M21-1, Part III, 5.14c subparagraph (8) (redesignated PartVI, paragraph 11.38b(2)), provides that "[i]f the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an inservice stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. Examples of behavior changes that might indicate a stressor are (but not limited to): visits to a medical or counseling clinic or dispensary without specific diagnosis or specific ailment; changes in performance and performance evaluations; increased disregard for military or civilian authority; increased interest in tests for Human Immunodeficiency Virus (HIV) or sexually transmitted diseases; and breakup of a primary relationship. Subparagraph (9) provides that "[r]ating boards may rely on the preponderance of evidence to support their conclusions even if the record does not contain direct contemporary evidence. In personal assault claims, secondary evidence which documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." The Court in Patton went on to note that the manual improperly appeared to require that the existence of the in- service stressor be shown by a preponderance of evidence. Any such requirement would be inconsistent with the so called equipoise doctrine, where the benefit of the doubt is given to the claimant unless the evidence preponderates against the claim. Under the circumstances, in addition to the previously discussed grounds, the Board has determined that a remand is required for the veteran to be given the opportunity to submit a full and detailed list of: 1) any evidence of behavioral changes which may support her claim; and 2) a list of fellow marines and/or civilians who may be able to provide lay statements as to changes in her observed behavior (the Board stresses that under M21-1, Part VI, 11.38b(2) the changes in her observed behavior must have been witnessed "at the time of the claimed stressors"). In addition, the service records indicate that the veteran was separated with a general discharge, with the rank of E4. Her discharges (DD Form 214's) indicate that she previously held the ranks of E5 and E6. On remand, the veteran's disciplinary file should be obtained. Finally, the Board notes that although M21-1 provides that evidence of changes of behavior that occurred at the time of the incident may indicate the occurrence of an in-service stressor, such evidence may need interpretation by a clinician. See M21-1, Part VI, 11.38b(2). Therefore, following the requested development, an opinion should be obtained from a VA psychiatrist, as outlined below. With regard to the claim for a higher evaluation for migraine headaches, the Board notes that in February 2001, the Board received VA examination reports and outpatient treatment reports which include a January 2001 VA examination report containing complaints and findings involving headaches and neurological functions. This evidence was received subsequent to the issuance of the July 2000 supplemental statement of the case (SSOC), which is the most recent SSOC to discuss this claim. The appellant has not submitted a written waiver of initial RO consideration of the new evidence, and it does not appear that this evidence has been reviewed by the RO. See 38 C.F.R. § 20.1304(a), (c) (2000). In this respect, regulations provide that 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 (SSOC), unless this procedural right is waived by the appellant. See id. Given the foregoing, and as it appears that the evidence received in February 2001 is pertinent to the issue in appellate status, the Board is required to take action pursuant to 38 C.F.R. § 20.1304(c) to ensure preliminary consideration by the RO. Therefore, this case is REMANDED for the following action: 1. The RO should contact the appellant to ascertain if there are any additional treatment reports, VA or otherwise, which are not currently associated with the claims file and which show evaluation or treatment for the claimed conditions. Any medical records that are obtained and that are not already on file should be associated with the claims folder. 38 C.F.R. § 3.159 (2000). 2. The RO should contact the veteran and request that she identify independently verifiable evidence of behavioral changes which occurred at the time of the alleged stressors, and to provide a list of any fellow marines and/or civilians, and their addresses, who may be able to provide lay statements as to changes which they observed in her behavior at the time of the claimed stressors. 3. The RO should obtain copies of the veteran's service personnel records, to include all records pertaining to any disciplinary action taken, and/or any reduction in rank. 4. 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 stressors. 5. The RO should schedule the veteran for a VA psychiatric examination to determine the nature of any psychiatric disorder present and the proper diagnosis(es) thereof, to specifically include consideration of whether the veteran has PTSD. If the veteran has PTSD, the examiner should report whether it is at least as likely as not that the veteran's PTSD was caused by her service. The RO should provide the examiner with a summary of any verified stressor(s), as well as the all evidence pertaining to changes in behavior at the time of the claimed stressors. If a chronic acquired psychiatric disorder other than PTSD is found to be present, the examiner should render an opinion for the record as to whether it is at least as likely as not that the psychiatric symptoms reported in service represented the onset of the currently diagnosed psychiatric disorder. The claims file should be provided to the examiner for review prior to conducting the examination. 6. After undertaking any additional development deemed appropriate, the RO should review the expanded record and determine whether entitlement to service connection for PTSD or other acquired psychiatric disorder, bilateral shin splints with bone deterioration, a lower back condition, and bilateral arthritis of the knees has been established, with all claims to specifically consider the recent legislative changes as contained in the Veterans Claims Assistance Act of 2000, as well as the evidence recently received by VA in February 2001 without a waiver of RO review. The RO should ensure that its efforts conform to all relevant provisions of the Act. If any of the decisions remain adverse to the appellant, she and her representative should be furnished a supplemental statement of the case. After affording a reasonable opportunity to respond, the case should be returned to the Board for further appellate review. 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. 2001) (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. W. SYMANSKI Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), 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).