Citation Nr: 0123862 Decision Date: 10/01/01 Archive Date: 10/09/01 DOCKET NO. 99-17 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant served on active duty from July 1974 to August 1978, and from October 1978 to February 1985. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 1999 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). In an unrelated matter, the record reflects that an appeal regarding entitlement to waiver of loan guaranty indebtedness may be pending based on the submission of a statement from the appellant in October 1990 following issuance of a statement of the case in August 1990. As it does not appear that any further action on this waiver claim was taken by either the appellant or the RO after October 1990, the RO should clarify whether this is still a matter in dispute and undertake any additional development and/or adjudication action. REMAND Additional development is required in this case to fully comply with duty to assist under the Veterans Claims Assistance Act of 2000, Pub. L. 106-475 (the VCAA) and implementing regulations adopted by VA in August 2001, which are effective from date of the enactment of the VCAA, November 9, 2000. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.159 and 3.326(a)). The VCAA eliminated the concept of a well-grounded claim and redefined VA's obligations with respect to the duty to notify and the duty to assist. 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. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991) (where law or regulation changes after a claim has been filed, but before administrative or judicial appeal process has concluded, the version most favorable to claimant should apply). As the claim of service connection for PTSD requires further development, as set forth below, the Board finds that this claim is entitled to readjudication on the merits at the RO-level under the letter and spirit of the VCAA and the implementing regulations. See Holliday v. Principi, 14 Vet. App. 280 (2001), mot. for recons. denied, 14 Vet. App. 327 (per curium order), mot. for full Court review denied, 15 Vet. App. 21 (2001) (en banc order) (all provisions of the VCAA are potentially applicable to claims pending on the date of the VCAA's enactment, and that concerns of fundamental fairness and fair process demand further development and readjudication under the VCAA by the lower adjudicatory authority (in this case, the RO)). In an effort to assist the RO, the Board has reviewed the claims file and identified certain assistance that must be rendered to comply with the VCAA. However, it is the RO's responsibility to ensure that all appropriate development is undertaken in this case. Specifically, additional evidentiary development is required, to include stressor-verification development and the scheduling of the appellant for a VA examination to determine whether she has a DSM-IV diagnosis of PTSD based on her reported stressor and a complete review of all the evidence in the claims file. The Board notes that the regulation governing the award of service connection for PTSD, 38 C.F.R. § 3.304(f), was amended in June 1999. See 64 Fed. Reg. 32807 (June 18, 1999). The new version of the regulation is effective from March 7, 1997, and hence, as this claim remains pending on appeal, the revised version must be considered. Of significance here is the change to section 3.304(f) which eliminated the requirement for a "clear diagnosis" of PTSD and replaced it with the criteria that an award of service connection depended on whether there was medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), which the Board observes is a reference to a diagnosis made on the criteria set forth in the DSM-IV. In the Board's view, the appellate record does not at this time contain sufficient medical evidence to decide this claim. See 38 U.S.C.A. § 5103A(d)(1) and (2), as amended by the VCAA. The Board also notes that precedent holdings of the United States Court of Appeals for Veterans Claims (the Court) provide specific guidance for the adjudication of PTSD claims based on non-combat stressors, at issue in this case. See Patton v. West, 12 Vet. App. 272 (1999) (verification of non- combat stressors); Suozzi v. Brown, 10 Vet. App. 307 (1997) (sufficiency of information to verify stressors); Cohen v. Brown, 10 Vet. App. 128 (1997) and Moreau v. Brown, 9 Vet. App. 389 (1996). In the Patton case, the Court found error in the Board's decision because it did not discuss the special evidentiary procedures for the development of PTSD claims based on non-combat stressors as established by VA guidelines. Patton, 12 Vet. App. 272 (1999). Where, as in this case, the veteran-claimant did not serve in combat and the claimed stressor is not related to combat, lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Id. citing West (Carelton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). However, special development procedures for non- combat stressors are required pursuant to VA's ADJUDICATION PROCEDURE MANUAL (the M21-1) in order to provide the veteran- claimant every opportunity to verify the occurrence of the claimed stressor. See M21-1, Part III, Section 5.14(c) (Feb. 20, 1996). In light of the Court's precedent holdings, the Board finds it necessary to address the matter of whether there is sufficient corroboration of the appellant's stressor (in- service rape) upon completion of the special development procedures under M21-1, Part III, Sec. 5.14(c), and upon completion thereof, further medical development to determine whether any "behavioral changes" that occurred at or close in time to the alleged incident could possibly indicate the occurrence of the stressor, as described in detail in the M21-1. In this particular case, there is evidence showing significant behavioral and mental status changes during service following the alleged rape incident at the Treasure Island Naval facility in 1974, to include subsequent drug use and other physical complaints involving abdominal pain, all of which ultimately resulted in the appellant's discharge from the U. S. Navy pursuant to administrative proceedings. These events were then followed by a long history of mental decompensation in the post service period. These facts require further expert psychiatric analysis to determine whether the appellant's diagnosis and clinical history are consistent with the tell-tale signs of PTSD based on the alleged rape stressor, which by all accounts of record will never be affirmatively verified by official record. With respect to the issue of stressor-verification, it is noted that in Suozzi, the Court expressly held that a veteran need not prove "every detail" of an alleged stressor. Id. at 311. In addition, in Moreau, the Court stated that credible supporting evidence of a stressor may be obtained from service records or "other sources." Id. at 395. Accordingly, this case is REMANDED to the RO for the following development action: 1. The RO should contact the appellant and inform her that she may submit any corroborating lay and/or medical evidence she may have pertaining to treatment for her PTSD symptoms. The RO should assist the appellant in obtaining such evidence, as appropriate. If she identifies medical treatment and provides specific dates, all VA records identified in this manner that have not already been associated with the claims file should be obtained pursuant to established procedures. With regard to any private medical treatment, if identified as such, after first providing her appropriate releases to obtain such records (VA Form 21-4142), attempts to secure copies of records pertaining to any indicated private physicians and/or facilities should be undertaken. The RO should proceed with alternative search efforts for any medical records which may have been transferred to another medical facility or retired. All records received in response to the request should be associated with the claims folder. The RO should proceed with all reasonable follow-up referrals that may be indicated by the inquiry. 2. The RO should contact the Social Security Administration (SSA) for the purpose of obtaining any records from that agency which pertain to claims filed in the past by the appellant (records show she filed a claim for benefits many years ago, but was denied). The RO should obtain copies of award letters/notices, administrative/appellate decisions, hearing transcripts, if applicable, and all medical records relied upon concerning any claims/appeals filed by the appellant for SSA benefits. The RO should proceed with all reasonable follow-up referrals that may be indicated by the inquiry. All attempts to obtain records, which are ultimately unsuccessful, should be documented in the claims folder. 3. With respect to the above, all attempts to obtain records which are ultimately not obtained should be documented, and in accordance with the VCAA and implementing regulations published in August 2001, the RO should notify the appellant of the records it was unable to obtain, briefly explain the efforts made to obtain such records, and describe any further action that the RO will take to obtain such records. For any VA or other Federal department or agency records, the RO should continue its efforts to obtain any records while the case is under development on remand until it becomes reasonably certain that such records cannot be obtained because they do not exist or until it becomes reasonably certain that further efforts to obtain records from the such sources would be futile. 4. In addition, the RO should contact the appellant and inform her that may submit any other corroborating evidence she may have pertaining to alleged rape incident experienced during service. The RO should inform her that she may submit any other evidence to verify her alleged stressors from military as well as nonmilitary sources. The RO should assist the appellant in obtaining such evidence, as appropriate. In connection with this development, the RO should ensure that all appropriate special development procedures mandated by M21-1, Section 5.14(c) for verification of a non-combat stressor is fully accomplished and documented in the claims folder, to include issuance of the special development letter to the appellant advising her of the steps necessary to verify her non-combat stressor. 5. Following the above, the RO must make a specific factual determination, based upon the complete record, with respect to whether the appellant's rape stressor occurred as she claims. In rendering this determination, the attention of the RO is directed to the law cited in the discussion above. If official service records or alternative records discussed in M21-1, Part III, Sec. 5.14c corroborate the appellant's allegations, the RO should specify that information. The RO should also indicate whether any behavioral changes that occurred at or close in time to the alleged rape incident could possibly indicate the occurrence of stressor and if so should decide whether this evidence needs interpretation by a clinician. See M21- 1, Part III, 5.14c (9). 6. Upon completion of the above, the RO should schedule a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. This examination, if feasible, should be conducted by a psychiatrist who has not previously examined, evaluated or treated the appellant. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the true diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether the alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether there is a link between the current PTSD-symptomatology and the in- service stressor found to be established by the record and found sufficient to produce PTSD by the examiner. In addition, the examiner must comment on the approximate date of onset and etiology of any diagnosed psychiatric disorder as shown by the evidence of record, and in so doing, the examiner should attempt to reconcile the multiple psychiatric diagnoses and/or assessments of record based on his/her review of all of the evidence of record, particularly with respect to prior diagnoses of PTSD. Further, in line with the M21-1 provisions, the examiner is requested to provide detailed medical analysis and interpretation of the diagnoses found present on examination in light of all the evidence of record for the purpose of addressing whether any behavioral changes that occurred at or close in time to the alleged rape incident could possibly indicate the occurrence of the alleged in-service stressor. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. 7. The appellant must be given adequate notice of any requested examination, which includes advising her of the consequences of failure to report for a scheduled examination. If she fails to report for an examination, this fact should be documented in the claims folder. A copy of all notifications must be associated with the claims folder. 8. The RO must review the claims file and ensure that any and all notification and development actions applicable to the appellant's claim and required by the VCAA are completed. 9. Upon completion of the above, the RO must readjudicate the appellant's claim of service connection for PTSD on the merits and with consideration given to all of the evidence of record, after ensuring that all VCAA duty-to-notify and duty-to-assist provisions have been fulfilled. This claim must be addressed pursuant to the revised version of 38 C.F.R. § 3.304(f) and the relevant caselaw of the Court discussed above. If any benefits sought on appeal remain denied, the RO should provide the appellant and her representative an adequate supplemental statement of the case. The supplemental statement of the case must contain notice of all relevant actions taken on her as ordered by this REMAND, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. The RO should then allow the appellant an appropriate period of time for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. 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). 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. P. RUSSELL 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).