Citation Nr: 0121040 Decision Date: 08/17/01 Archive Date: 08/27/01 DOCKET NO. 00-13 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for Post-Traumatic Stress Disorder (PTSD). 2. Entitlement to service connection for residuals of trauma to the brain and spinal cord. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, Appellant's Mother ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The veteran served briefly on active duty from January 3, 1995 to January 25, 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 1999, the RO denied service connection for PTSD and for residuals of trauma to the brain and spinal cord. REMAND In 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). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of the Department of Veterans Affairs (VA) with respect to the duty to assist, and supercedes the decision of the Court 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 App. 477 (1999), withdrawn sub nom.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 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). The VCAA provides that VA 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 VA. Assistance to the claimant is required unless there is no reasonable possibility that assistance will aid in the substantiating the claim. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified at 38 U.S.C. § 5103A). The VCAA also mandates that the assistance to be provided by VA shall include providing notice of the lay and/or medical evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A. The veteran has claimed entitlement to service connection for PTSD. He has alleged, in part, that he was the victim of sexual assault while on active duty. A VA examination was conducted in February 1998 but did not result in a diagnosis of PTSD. The VA physician did not have access to the veteran's service medical records or any other records at the time of the examination. The Court has held that examinations for compensation and pension purposes conducted without contemporaneous review of the veteran's claims file are deficient for rating purposes. Procelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The RO has not attempted to verify the veteran's claim of an in-service sexual assault. It is noted that victims of in- service personal assault may find it difficult to produce evidence to support the occurrence of the stressor. However, alternate sources are available that may provide credible support to a claim of an in-service personal assault. These include medical or counseling treatment records following the incident, military or civilian police reports, reports from crisis intervention or other emergency centers, statements from confidants such as family members, roommates, clergy, or fellow service members, or copies of personal diaries or journals. VA Adjudication Manual M21-1 (M21-1), Part III, 5.14(c) (February 20, 1996). The Court has held that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault are substantive rules which are the equivalent of VA regulations. Cohen; YR v. West, 11 Vet. App. 393, 398-99 (1998); Patton v. West, 12 Vet App 272 (1999). The Board finds the RO failed to comply with the requirements of M21-1, Part III, 5.14(c) with regard to development of claims based on personal assault cases. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor based on personal assault. The RO must determine whether the veteran exhibited behavior changes in service. See M21-1, Part III, 5.14(c)(8). If there is evidence of behavior changes, it should be determined whether these indicate the occurrence of a stressor. Secondary evidence may need interpretation by a clinician, particularly if it involves behavior changes, and evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. M21-1, Part III, 5.14(c)(9); Patton. The veteran has also claimed entitlement to service connection for residuals of brain and spinal cord trauma which was allegedly the result of an in-service physical assault. He has alleged that it occurred during active duty and that he currently experiences residuals from the attack. The veteran has not been afforded a VA examination. The Board finds that the VCAA requires the RO to provide the veteran an opportunity for a VA examination to determine the extent and etiology of any brain or spinal cord injuries found on examination. At the time of a June 2001 personal hearing conducted by the undersigned Member of the Board, the veteran provided information as to medical treatment he had received subsequent to his discharge from active duty. The RO made an attempt to obtain some of this evidence but the wrong name of the hospital was provided. The Board finds the RO must contact the veteran and request that he provide the names and addresses as well as appropriate releases for medical treatment he had received subsequent to his discharge from active duty. The RO must then attempt to obtain any evidence sufficiently identified. The veteran has testified that he was in receipt of Social Security Administration disability benefits. Such records have not been associated with the claims files. The RO must attempt to secure these records. The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") has indicated that medical records upon which an award of Social Security Disability benefits has been predicated are relevant to VA claims for service connection and an increased rating. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Board notes the veteran's representative has requested at the time of the June 2001 hearing that both issues on appeal be remanded for additional evidentiary development. Accordingly, the issues of entitlement to service connection for PTSD and residuals of brain and spinal cord trauma are remanded for the following actions: 1. 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). In this regard, the RO should, in accordance with Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, § 3(a), 114 Stat. 2096, ___ (2000) (to be codified at 38 U.S.C. § 5103A(c)), request that the veteran supply the names, addresses, and approximate dates of treatment for medical care providers, VA and non-VA, inpatient and outpatient, who may possess additional records referable to treatment for his PTSD and/or residuals of brain and spinal cord trauma. After securing any necessary authorization or medical releases, the RO should obtain legible copies of the evidence from all sources identified whose records have not previously been secured. Regardless of the veteran's response, the RO should secure all outstanding VA treatment reports. The Board is particularly interested in obtaining the records from Haverford State Hospital, Crozier Chester Medical Center (formerly known as Sacred Heart Hospital) including the reported Computed Tomography examination of the spine, and Harrisburg State Hospital (VA). The RO should obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. Moreover, the National Personnel Records Center should be contacted with a request that a search again be conducted for records, developed during an admission at Great Lakes Naval Hospital in January 1995. The accredited representative has astutely pointed out that records are filed by the name of the hospital at that facility. The RO should inform the veteran of any records it has been unsuccessful in obtaining as provided under Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, ___ (2000) (to be codified at 38 U.S.C. § 5103A(b)(2)). 2. The RO should schedule the veteran for an appropriate examination to determine the nature and etiology of any residuals of brain or spinal cord trauma found on examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination and the examination report must be annotated to reflect review of this information. All necessary tests and studies should be performed. The examiner should be requested to clearly indicate whether diagnoses of residuals of brain or spinal cord trauma is/are warranted and, if so, the examiner should offer an opinion as to whether it is as likely as not that any such disorder found on examination was incurred in or aggravated by active duty. Any opinions expressed must be accompanied by a complete rationale. 3. The RO should afford the veteran the opportunity to submit any additional evidence in support of his claim for service connection for PTSD. The veteran is advised that this information is necessary to obtain supportive evidence of the stressful events and that he must be as specific as possible because without such details an adequate search for verifying information can not be conducted. The RO should then request any supporting evidence from alternative sources identified by the veteran and any additional alternative sources deemed appropriate, if he has provided sufficiently detailed information to make such request feasible. 4. If the RO determines that there is evidence of behavior changes at the time of an alleged stressor which 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 M21-1, Part III, 5.14(c)(9). 5. 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) and 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. In reaching this determination, the RO should address any credibility questions raised by the record. 6. Thereafter, if and only if any claimed in-service stressor is corroborated by the evidence or if otherwise deemed warranted, the veteran should be afforded a VA psychiatric examination. 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 receipt of which should be acknowledged in the examination report. All findings should be reported in detail. Any further indicated special studies should be conducted. The examiner should review the results of any testing prior to completion of the reports. The examiner must determine whether the veteran has PTSD and, if so, whether the in-service stressor(s) found to be established by the RO are sufficient to produce PTSD. The examiner should be instructed that only the verified events listed by the RO may be considered as stressors. The examiner should utilize the DSM-IV in arriving at diagnoses and identify all existing psychiatric diagnoses. If PTSD is diagnosed, the examiner must explain whether and how each of the diagnostic criteria is or is not satisfied. Also, if PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. If PTSD is not diagnosed, yet the examiner finds the appellant has other psychiatric disorders, the examiner must express an opinion as to whether any such disorder(s) is or are related to the appellant's period of service on any basis, to include on the basis of aggravation. A complete rationale must be given for any opinion expressed and the foundation for all conclusions should be clearly set forth. 7. 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. If any benefit sought on appeal remains denied, the appellant and the appellant's representative, if any, should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue(s) currently on appeal. An appropriate period of time should be allowed for response. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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. 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).