Citation Nr: 0121849 Decision Date: 08/29/01 Archive Date: 09/04/01 DOCKET NO. 92-08 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Jeffrey J. Wood, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. Nottle, Counsel INTRODUCTION The veteran had active service from June 1943 to April 1946. His claim comes before the Board of Veterans' Appeals (Board) on appeal from an August 1991 rating decision, in which the Department of Veterans Affairs (VA) Regional Office and Insurance Center in Philadelphia, Pennsylvania (RO), denied entitlement to service connection for PTSD. In June 1993, the Board remanded the case to the RO. In March 1999, the Board affirmed the RO's August 1991 denial. The veteran appealed the Board's March 1999 decision to the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court). Based on a Joint Motion for Remand and to Stay Further Proceedings (Joint Motion) dated November 2000, the Court vacated and remanded the Board's decision for further development and readjudication consistent with the contents of the Joint Motion, applicable statutory and regulatory provisions, and decisions of the Court. The parties agreed that the March 1999 Board decision should be remanded to allow the Board to determine whether the RO adequately fulfilled the duty to assist the appellant in developing the evidence of an in- service stressor pursuant to the requirements set forth in Patton v. West, 12 Vet. App. 272, 277 (1999). (Issued the day before the Board decision and not considered by the Board). REMAND The issue before the Board is whether the veteran is entitled to service connection for PTSD. The veteran asserts that he developed PTSD as a result of a stressor he experienced while serving on active duty. This stressor allegedly involved a personal assault, during which Lieutenant [redacted], a superior officer, fondled the veteran. The Board acknowledges the veteran's assertion. However, additional development by the RO is necessary before the Board can proceed in readjudicating this claim. While this appeal was pending, legislation was passed that enhances the VA's duties to notify a claimant regarding the evidence needed to substantiate a claim and to assist a claimant in the development of a claim. See Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). The 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 of the VCAA and which are not final as of that date. VCAA, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099 (2000). In addition, while this appeal was pending, 38 C.F.R. § 3.304(f), the regulation governing claims for service connection for PTSD, was changed effective March 7, 1997. Previous to this amendment, a claimant could establish entitlement to service connection for PTSD by submitting medical evidence establishing a clear diagnosis of PTSD, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1998). Under the revised regulation, the veteran must submit medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter; 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). Where the law or regulations change after a claim has been filed or reopened but before the administrative or judicial appeal process is completed, the version of the law or regulations most favorable to the appellant applies unless Congress provides otherwise. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1990). In this case, the RO did not develop the veteran's PTSD claim pursuant to the VCAA and the Board did not consider the amended language of 38 C.F.R. § 3.304(f) in deciding this claim in March 1999. Inasmuch as the VCAA fundamentally alters the VA's duties to notify and assist the veteran, and this alteration appears to favor the veteran, and the changes to C.F.R. § 3.304 are liberalizing, a Remand is in order so that the RO can apply the more favorable version of the law and regulation to the veteran's PTSD claim. In developing the veteran's claim pursuant to the VCAA, the RO should follow the directives of the November 2000 Joint Motion, in which the parties to this appeal agreed that the RO had not assisted the veteran in developing his "in- service" stressor in accordance with the holding in Patton and the VA Adjudication Procedure Manual M21-1, Part III, paragraph 5.14c. See Joint Motion at 4-5. In Patton, the Court noted that, with regard to claims for PTSD due to personal assault, VA has established special procedures for evidentiary development. These procedures, which became effective in February 1996, take into account the fact that, because personal assault is an extremely sensitive issue, many such incidents are not officially reported and victims of this type of in-service trauma might find it difficult to produce evidence to support the occurrence of the stressor. These procedures were thus implemented to counter the difficulty veterans face in establishing the occurrence of the stressor through standard evidence, and allow for the development of claims for PTSD due to personal assault based on alternate sources of evidence. See VA Adjudication Procedure Manual M21-1 (hereinafter M21-1), Part III, paragraph 5.14c (Feb. 20, 1996) (substantially enhancing the language of the former Manual M21-1, Part III, paragraph 7.47c(2) (Oct. 11, 1995)). Alternate sources that may provide credible evidence of an in-service personal assault 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 servicemen, copies of diaries or journals, or behavior changes documented or observed at the time of the incident, such as obsessive behavior at the time of the incident, pregnancy tests, increased interest in test for sexually transmitted diseases, termination of primary relationships, or alcohol and drug abuse. Evidence that documents any such behavioral changes may require interpretation by a VA neuropsychiatric physician to determine whether such evidence bears a relationship to the medical diagnoses. See M21-1, Part III, para. 5.14(c)(9). These provisions recognize that the standard PTSD stressor letter may be inappropriate for this type of PTSD claim and thus state that, if the claimed stressful incident is a personal assault, a stressor development letter specifically tailored for personal assault cases should be sent to such veterans. See M21-1, Part III, para. 5.14(c)(6). In this case, prior to the Court's November 2000 Order, the veteran consistently indicated that he told no one of his alleged sexual fondling in service because he was embarrassed, that there were no witnesses to the incidents, and that he made no official complaints or reports that would have resulted in any investigations or prosecutions pertaining to the matter. Despite this fact, the veteran is entitled to due process of law, which, according to the aforementioned M21-1 provision and the Court, necessitates the issuance of a development letter specifically tailored for personal assault cases. If this letter results in the veteran submitting evidence that documents behavioral changes, the RO should seek an interpretation of those changes by a VA physician. In addition, since the Board decision, the veteran has contended, in an undated statement, that his PTSD results not only from the reported personal assault stressor, but also from a combat-related stressor. On Remand, the RO should obtain additional information from the veteran regarding this alleged stressor, and if sufficient information is provided, seek to verify the alleged stressor to the extent required by law. In adjudicating a claim for PTSD, the evidence necessary to establish the occurrence of a stressor during service varies depending on whether the veteran was "engaged in combat with the enemy." Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is shown through military citation or other appropriate evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence of their actual occurrence, provided the testimony is found to be satisfactory, e.g., credible and "consistent with the circumstances, conditions, or hardships of such service." In such cases, no further developmental or corroborative evidence is necessary. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (2000). In determining whether the veteran participated in combat, the veteran's oral and written testimony will be weighed together with the other evidence of record. Cohen v. Brown, 10 Vet. App. 128, 146 (1997). In a recent precedent opinion, VA's General Counsel held that the ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran "have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." VAOPGCPREC 12-99, 65 Fed. Reg. 6256-6258 (2000). The General Counsel also held that the determination of whether a veteran engaged in combat with the enemy necessarily must be made on a case-by-case basis, and that absence from a veteran's service records of any ordinary indicators of combat service may, in appropriate cases, support a reasonable inference that the veteran did not engage in combat; such absence may properly be considered "negative evidence" even though it does not affirmatively show that the veteran did not engage in combat. Id. Where a determination is made that the veteran did not "engage in combat with the enemy," or that the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Corroborating evidence of a stressor is not restricted to service records, but may be obtained from other sources. Id (citing M21-1). The absence of corroboration in the service records, when there is nothing in the available records that is inconsistent with other evidence, does not relieve the Board of its obligations to assess the credibility and probative value of the other evidence. Doran v. Brown, 6 Vet. App. 283, 290-91 (1994). If, after attempting to verify the alleged stressors, the RO concludes that one or more of the stressors actually occurred, the RO should schedule the veteran for an appropriate psychiatric examination to obtain an opinion as to whether the verified stressor is of sufficient severity to support a diagnosis of PTSD. The RO should provide the medical examiner with a summary report identifying with specificity the stressors that have been verified and instruct the medical specialist that only those stressors may be relied upon in considering whether the veteran's in- service experiences were sufficiently severe as to have resulted in any current PTSD symptoms shown to exist. See Zarycki v. Brown, 6 Vet. App. 91 (1993); West v. Brown, 7 Vet. App. 70 (1994). In readjudicating the veteran's claim, the RO should keep in mind that, according to the Court in Patton, M21-1 appears improperly to require that the existence of an in-service stressor be shown by "the preponderance of the evidence." The Court held that any such requirement would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b), and that evidence of an in-service stressor need only be in relative equipoise to prevail on the question of the existence of the stressor. The RO should also keep in mind that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault, are substantive rules that have the same effect as VA regulations and are binding on VA. Patton, 12 Vet. App. at 272. The RO should provide the veteran and his representative an opportunity to submit additional evidence and argument in support of this claim. To ensure that the veteran is afforded due process of law and that the Board's decision is based on a complete record, this case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and request him to furnish the names and addresses of all medical providers who have treated his PTSD and whose records are not currently in the claims file. 2. After securing any necessary authorization, the RO should attempt to obtain and associate with the claims file records of all treatment identified by the veteran. 3. The RO should pursue all reasonable avenues of development in an attempt to verify the stressors reported by the veteran. For instance, the RO should: (a) request the veteran to submit a more detailed stressor statement with regard to the alleged combat-related stressor and/or the names and addresses of individuals who could verify this particular stressor; (b) provide the veteran with a personal assault letter and questionnaire to be filled out and returned, in accordance with M21-1, Part III, § 5.14(c); (c) instruct the veteran to submit as much information as possible about the alleged in-service personal assault, to include a detailed description of the incident(s), the pertinent date(s) and location(s), and the complete names and unit designations of the individuals who have knowledge of the incident; (d) provide the veteran an opportunity to submit additional evidence in support of his PTSD claim, including statements from family members, physicians, clergy, and fellow servicemen verifying that the personal assault and/or combat-related stressor occurred; (e) request the veteran to identify potential alternative sources for supporting evidence of the alleged stressors; (f) advise the veteran that this information is critical to a favorable decision; and (g) attempt to verify the stressors, including by contacting all alternative sources deemed appropriate, provided the veteran submits sufficiently detailed information to make a request for verification feasible. 4. If the RO receives 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 claims 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), regarding 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 so doing, the RO should address any credibility questions raised by the record. If the RO determines that no alleged stressor actually occurred, it should so state in its report, which should then be associated with the claims file. 6. If the RO finds that at least one of the alleged stressors actually occurred, it should schedule the veteran for a psychiatric examination to obtain an opinion as to whether the veteran currently has PTSD as the result of the verified stressor. The RO should provide the examiner with the claims file, copies of its stressor report, and this Remand for review in conjunction with the examination. After conducting a thorough examination, and if appropriate, all tests deemed necessary, the examiner should: (1) identify all psychiatric disorders present; and (2) opine whether it is at least as likely as not that the veteran's PTSD, to the extent it is present, is related to the veteran's period of active service, specifically, to a verified in-service stressor. The RO should advise the examiner that he may not rely upon any unverified stressors in determining whether the veteran's in- service experiences were of sufficient severity to support a diagnosis of PTSD. The examiner should express clearly the rationale on which he bases his opinions. 7. Following the above development, the RO should review the examination report to determine whether it complies with the previous instruction. If the report is deficient in any regard, immediate corrective action should be taken. 8. Thereafter, the RO should review the entire claims file and ensure compliance with all other notification and assistance requirements of the VCAA. 9. Finally, the RO should readjudicate the veteran's PTSD claim based on all of the evidence of record pursuant to the pertinent law, regulations, Court decisions and M21-1, Part III, 5.14(c). Any additional action considered necessary to comply with the notice and development requirements of the Veterans Claims Assistance Act of 2000 should be undertaken. If the RO denies the benefit sought, it should provide the veteran and his representative a supplemental statement of the case, which cites pertinent law and regulations, and afford them an opportunity to respond thereto before the claims file is returned to the Board for further review. The purposes of this REMAND are to ensure that the veteran is afforded due process of law and to obtain additional stressor and medical information. The Board does not intimate any opinion, favorable or unfavorable, as to the merits of this appeal. The veteran is free to submit additional argument and evidence in support of his claim. However, he is not obligated to act unless otherwise notified. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). By law, this claim must be afforded expeditious treatment by the RO. Claims that are remanded by the Board or 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); see also M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. STEVEN L. COHN 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).