Citation Nr: 0122395 Decision Date: 09/13/01 Archive Date: 09/19/01 DOCKET NO. 98-11 062 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for anorexia nervosa. 3. Entitlement to service connection for bulimia. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The veteran and a women's veterans coordinator ATTORNEY FOR THE BOARD Mary C. Suffoletta, Associate Counsel INTRODUCTION The veteran had active service from June 1964 to June 1967. This matter comes to the Board of Veterans' Appeals (Board) from a January 1997 RO rating decision and subsequent rating decisions that denied service connection for PTSD, anorexia nervosa, and bulimia. The veteran submitted a notice of disagreement in January 1997, and the RO issued a statement of the case in May 1998. The veteran submitted a substantive appeal in July 1998, and testified before the undersigned member of the Board at the RO in June 2001. The veteran was given additional time to obtain pertinent medical records, and she waived initial consideration by the RO of additional evidence submitted directly to the Board. Entitlement to service connection for anorexia nervosa and for bulimia will be addressed in the remand portion of this decision. FINDING OF FACT The veteran experienced sexual trauma in service that resulted in current PTSD. CONCLUSION OF LAW PTSD was incurred as a result of active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.102, 3.304(f) (2000). REASONS AND BASES FOR FINDING AND CONCLUSION A. Factual Background Service medical records at the time of the veteran's enlistment examination and at the time of discharge show normal psychiatric and neurologic systems. Records reflect that the veteran was hospitalized in 1981 for attempted suicide. Private medical records and hospital records dated in 1981 and 1982 show diagnoses of chronic schizophrenia and depression with suicide intent. VA progress notes dated in January 1997 show a diagnosis of PTSD, chronic with delayed onset. VA progress notes dated in March 1997 show that the veteran complained that she was "having a hard time." She related watching a television report of sexual abuse in the armed forces in December 1996, and was flooded with memories of her own experiences of sexual abuse during service. She described an incident of "date rape," as well as other episodes of sexual abuse in service. The examiner noted that the veteran endorsed multiple symptoms of PTSD, including nightmares, intrusive thoughts, memories and images of being raped, anxiety, depression, insomnia, irritability, increased startle reflex, and symptoms of panic attacks. Her psychiatric history included suicidal gestures, and multiple hospitalizations and outpatient treatment for depression and bulimia. The diagnoses on Axis I were PTSD, delayed onset, severe; major depressive disorder; and history of bulimia. A February 1998 letter from a licensed clinical social worker notes that the veteran was being treated for a serious depressive disorder, and that her condition was complicated and exacerbated by a history of trauma that included sexual abuse. Testimony of the veteran at the hearing in June 2001, was to the effect that she went out on what seemed to be a harmless date to a party, and was forced to have sex with her date. Subsequent assaults occurred while walking at night and being pulled off the sidewalk and taken behind a dark building, and being groped. The veteran testified that she did not report the incidents due to fear of being discharged from service or removed from her nurse-training program. The Women's Veterans Coordinator at the RO also offered testimony in support of the veteran's claim. A June 2001 letter from a VA registered nurse and sexual trauma counselor reflects that the veteran did manifest behavior changes following the sexual assaults-namely, fear of men, hypervigilence, anxiety, low self-esteem, and an eating disorder. The veteran also experienced night terrors, repulsion to sex, and numerous suicide attempts. B. VA's Duty to Assist and Provide Notice 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); 38 C.F.R. §§ 5100, 5102-5103A, 5106-5107 (West Supp. 2001). 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). In this case the veteran's application appears to be complete. She has been informed of the information necessary to substantiate her claim via the statement of the case. The RO has made several attempts to obtain the veteran's medical records. All available records have been associated with the claims folder. The veteran was given additional time to obtain and submit pertinent medical records, and she did so. The Board finds that all relevant evidence has been obtained with regard to the claim and that no further assistance to the veteran is required to comply with VA's duty to provide notice or assist her. 38 U.S.C.A. § 5103A; 66 Fed. Reg. 45,630-2 (Aug. 29, 2000) (to be codified at 38 C.F.R. § 3.159). In view of the allowance of the veteran's claim, she is not prejudiced by the Board's consideration of her appeal under the new law and implementing regulations. C. Legal Analysis Service connection may be granted for a disability resulting from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2000). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed inservice stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy, and the claimed stressor is related to that combat, her lay testimony alone may establish the incurrence of the claimed inservice stressor in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of her service. 38 C.F.R. § 3.304(f); see also, Cohen v. Brown, 10 Vet. App. 128 (1997). In Patton v. West, 12 Vet. App. 272, 278 (1999), the United States Court of Appeals for Veterans Claims (the Court) pointed out that there are special evidentiary procedures for PTSD claims based on personal assault contained in VA ADJUDICATION MANUAL M21-1, Part III, para. 5.14c (February 20, 1996), and former M21-1, Part III, para. 7.46(c)(2) (October 11, 1995). In personal assault cases, 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, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities." VA ADJUDICATION PROCEDURAL MANUAL M21-1, Part III, para. 5.14c(5). Pertinent to this case are the provisions of subparagraph (8) and subparagraph (9) reflecting that behavior changes at the time of the incident may indicate the occurrence of an inservice stressor. The provisions also note that "secondary" evidence may need interpretation by a clinician, especially if it involves behavior changes, and evidence that documents such behavior changes may require interpretation by a VA neuropsychiatric physician. Subparagraph (8) also provides examples of behavior changes that may indicate a stressor. These are (but are not limited to) a visit to the dispensary without a specific diagnosis; sudden request for a change of duty assignment; lay statements of depression, but no identifiable reason for the depression; and evidence of substance abuse. Also in Patton, the Court qualified prior statements contained in other Court decisions indicating that "sometimes more than medical nexus evidence is required to fulfill the requirement of credible supporting evidence" 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." The Court stated that these quoted categorical statements were made in the context of discussing PTSD diagnoses, other than those arising from personal assault. See Cohen v. Brown, 10Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). To that extent, the Court found that the above categorical statements in Cohen and Moreau, and other cases where they may have been echoed, are not operative. In addition, the Court noted that in two places, M21-1, Part III, para. 5.14c (3) and (9), appears improperly to require that the existence of an inservice stressor be shown by "the preponderance of the evidence." The Court clearly stated that any such requirement would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C.A. §§ 5107(b). Patton, 12 Vet. App. at 280. A diagnosis of PTSD based on active service has been made in this case. A March 1997 diagnosis of PTSD was made following a VA physician's notation that described the "date rape" and other episodes of sexual abuse in service, as reported by the veteran. In addition, the VA physician reported that the veteran had multiple symptoms of PTSD, including memories and images of being raped. This evidence of record tends to show a causal nexus. See, e.g., Hodges v. West, 13 Vet. App. 287 (2000). The veteran attributes her PTSD to "date rape" and other sexual assaults in service. A review of the evidence of record fails to establish conclusively that any incident in fact occurred. Thus, the crux of this case is whether there is enough evidence, given the special consideration noted in M21-1, Part III, para. 5.14c (5), (8) and (9), to establish equipoise on the issue of whether the veteran's claimed stressors actually occurred. The Board notes that, when there is an approximate balance of positive and negative evidence regarding the merits of a material issue, the benefit of the doubt regarding each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West Supp. 2001). Regarding the "date rape" and sexual assaults, the veteran testified that she was forced to have sex against her will and that she was physically accosted in service. A review of the veteran's service medical records reveals that she was treated on several occasions for urinary tract infections, and was treated once for abdominal pain and gastritis. Otherwise, no abnormalities were reported. Service medical records are negative with regard to complaints of "date rape" or of any assault. A VA registered nurse and sexual trauma counselor reported that the veteran essentially suffers from PTSD symptoms as a result of sexual assaults in service. She described behavior changes following the incidents, including fear, hypervigilence, anxiety, and an eating disorder. Moreover, a VA physician has rendered a diagnosis of PTSD related to the claimed inservice stressors. Having considered all the evidence, the Board finds that it is essentially in equipoise as to whether or not the claimed inservice stressors actually occurred. Under the circumstances, the veteran prevails as to her claim for service connection for PTSD with application of the benefit of the doubt in her favor. 38 U.S.C. § 5107 (West Supp. 2001). ORDER Service connection for PTSD is granted. REMAND Service medical records reflect that the veteran complained of abdominal and back pain and was treated for gastritis in 1967. Recent medical records reflect an eating disorder and a history of bulimia since 1981. Her testimony at the June 2001 hearing was to the effect that her eating disorder began in service. As shown above, service connection has been established for PTSD based on personal assault. There are also competent opinions suggesting that the veteran has a history of eating disorders related to PTSD or in-service stressors. However, it is not clear from the clinical evidence whether the veteran meets the criteria for a current diagnosis of an eating disorder. Where there is a reasonable possibility that a current condition is related to or is the residual of a condition or injury experienced in service, VA should seek a medical opinion as to whether the veteran's claimed current disability is in any way related to the condition or injury experienced in service. Horowitz v. Brown, 5 Vet. App. 217 (1993). Accordingly, an examination is required to obtain a medical opinion as to whether it is at least as likely as not that the veteran's current eating disorders are related to an incident of service or a service-connected disability. In view of the above, the case is REMANDED to the RO for the following actions: 1. The RO should, in accordance with 38 U.S.C.A. § 5103A(c), request that the veteran supply the names and addresses of all facilities that have treated her for any eating disorder since service. The RO should then take all necessary steps to obtain copies of all records not already contained in the claims folder. The RO should also inform the veteran of any records it has been unsuccessful in obtaining as provided under 38 U.S.C.A. § 5103A(b)(2). 2. The RO should schedule the veteran for an examination to determine the current nature and etiology of any current eating disorder. The examiner should review the claims folder, including the service medical records and post-service medical records and should note such review in the examination report. The examiner should offer opinions as to: (a) Whether it is at least as likely as not that the veteran's eating disorder is related to an in- service stressful incident (in accordance with M21-1, Part III, para. 5.14c), or to the gastritis noted in service or to another incident of service; and (b) Whether it is at least as likely as not that the veteran's service-connected PTSD (or any other service-connected disability) caused or increased the veteran's eating disorder. 3. The RO should determine whether the duty to assist has been satisfied under the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), and the implementing regulations. If so, the RO should then review the veteran's claims for service connection for anorexia nervosa and for bulimia. If action remains adverse to the veteran, an appropriate supplemental statement of the case should be sent to her and her representative, and they should be afforded an opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action unless notified otherwise, but may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995); see also Kutscherousky v. West, 12 Vet. App. 369 (1999). The Board intimates no opinion as to the ultimate outcome of this case. The veteran is advised that the examination requested in this remand is deemed necessary to evaluate her claims and that her failure, without good cause, to report for scheduled examinations could result in the denial of her claims. 38 C.F.R. § 3.655 (2000). 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. Mark D. Hindin Member, Board of Veterans' Appeals