Citation Nr: 0124770 Decision Date: 10/17/01 Archive Date: 10/23/01 DOCKET NO. 99-16 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. M. Panarella, Associate Counsel INTRODUCTION The veteran served on active duty from July 1988 to April 1994, with additional prior service in the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the April 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). REMAND As a preliminary matter, the Board observes that the veteran requested a personal hearing before the RO when she submitted her Notice of Disagreement in May 1999. The RO scheduled this hearing in August 1999. However, the veteran then requested that the RO consider newly submitted evidence before she appeared for her personal hearing. The RO considered the evidence but never rescheduled the veteran for a hearing. Accordingly, this matter must be remanded in order for the RO to schedule the veteran for the requested personal hearing. The veteran essentially maintains that she suffers from PTSD as a result of sexual harassment by unit superiors during her deployment to the Persian Gulf. She performed administrative, fuel supply, and guard duties in Saudi Arabia and claims that she volunteered to bag bodies for one to two weeks to avoid the sexual harassment. The veteran's DD 214 and personnel records confirm that she served in the Persian Gulf from September 1990 to March 1991. Her military occupational specialty was administrative specialist and she received no awards or decorations indicative of combat involvement. The veteran's service medical records contain no diagnoses or treatment for a psychiatric disorder and contain no complaints of sexual harassment. The veteran complained of insomnia in January 1993 that was assessed as due to stress and tobacco intake. In a statement to the RO, the veteran essentially claimed that superior enlisted personnel created a hostile environment by making offensive statements. She contended that her platoon sergeant and platoon leader were involved, but did not provide their names. Following her duty in Saudi Arabia, she apparently was transferred and had no further problems. A statement submitted by the veteran's former Master Sergeant stated that she served on deceased personnel detail in Saudi Arabia and that her military performance was superior. During VA examinations in June 1994, June 1997, and September 1999, the veteran was diagnosed with generalized anxiety disorder and dysthymia. All examiners found that she did not meet the criteria for PTSD. In letters submitted in May 1998 and May 1999, James M. Thomas, Jr., Ph.D., stated that the veteran had PTSD due to sexual harassment in Saudi Arabia. He also referenced other unverified stressors such as witnessing two colleagues killed in combat in Saudi Arabia, and service in Bosnia and Somalia. In YR v. West, 11 Vet. App. 393 (1998), the United States Court of Appeals for Veterans Claims (Court) addressed the issue of corroboration of stressors in PTSD cases involving sexual assault. In YR, the Court advised that the portions of the VA Adjudication Procedure Manual M21-1, Part III, paragraph 5.14c, provided "guidance on the types of evidence that may serve as 'credible supporting evidence' for establishing service connection of PTSD which allegedly was precipitated by a personal assault during military service." YR, 11 Vet. App. at 399. Manual M21-1 lists evidence that might indicate such a stressor, namely lay statements describing episodes of depression, panic attacks or anxiety but no identifiable reasons for the episodes, visits to medical clinics without a specific ailment, evidence of substance abuse, and increased disregard for military or civilian authority. The Manual also lists behaviors such as requests for change of military occupational specialty or duty assignment, increased use or abuse of leave, changes in performance and performance evaluations, increased use of over-the-counter medications, unexplained economic or social behavior changes, and breakup of a primary relationship as possibly indicative of a personal assault, provided that such changes occurred at the time of the incident. See Manual M21-1, Part XII, para 11.38b(2) (Change 55). In Patton v. West, 12 Vet. App. 272, 277 (1999), the Court noted that in the particular case of claims of PTSD due to a personal assault, VA has established special procedures for evidentiary development. These procedures, which became effective in February 1996, take into account the fact that since personal assault is an extremely sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. These procedures thus acknowledge the difficulty veterans face in establishing the occurrence of the stressor through standard evidence, and the need for development of alternate sources of evidence. See Manual M21-1, Part III, paragraph 5.14c (Feb. 20, 1996) (substantially enlarging on 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 or family, 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). Furthermore, 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). 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, and are binding on VA. YR, 11 Vet. App. at 398-99; Patton, 12 Vet. App. at 272. Finally, during the pendency of this appeal, the Veterans Claims Assistance Act of 2000, effective November 9, 2000, was signed into law, and regulations to implement the provisions of the new law were also passed, generally effective as of the same date. See Veterans Claims Assistance Act of 2000, 38 U.S.C.A. § 5103A (West Supp. 2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). Changes potentially relevant to the veteran's appeal include the establishment of specific procedures for advising the claimant and her representative of information required to substantiate a claim, a broader VA obligation to obtain relevant records and advise claimants of the status of those efforts, and an enhanced requirement to provide a VA medical examination or obtain a medical opinion in cases where such a procedure is necessary to make a decision on a claim. In the present case, the Board recognizes that the RO advised the veteran of some alternative sources of evidence to substantiate her claim, and that she has not provided any such evidence. However, the Board believes that the veteran should be given an additional opportunity to present such evidence and should be fully advised of the requirements for a claim of PTSD based upon sexual harassment. Therefore, in order to give the veteran every consideration with respect to the present appeal and to accord the veteran due process of law, the Board finds that further development with respect to the issues on appeal in this case is warranted. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should 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), in order to obtain as much information as possible about the personal assault incidents in service, to include a detailed description of the pertinent incidents, with all pertinent dates and locations, as well as the complete names and unit designations of the assailants and others who were also assaulted or have knowledge of the incident. 2. The RO should afford the veteran the opportunity to submit any additional evidence in support of her claim for service connection for PTSD, to include statements from relatives. She should be asked to provide any additional information possible regarding the stressful events claimed to have caused PTSD and to identify potential alternative sources for supporting evidence regarding the stressors she alleges occurred in service. In particular, the veteran should provide as much detailed information as possible including the dates, places, names of people present, and detailed descriptions of events. The veteran is advised that this information is necessary to obtain supportive evidence of the stressful events and that she 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 the veteran has provided sufficiently detailed information to make such request feasible. 3. 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 inservice 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). 4. 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. 5. Thereafter, if any claimed inservice 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. 6. The examiner must determine whether the veteran has PTSD and, if so, whether the inservice 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. 7. 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. A complete rationale must be given for any opinion expressed and the foundation for all conclusions should be clearly set forth. The report of the psychiatric examination should be associated with the veteran's claims folder. 8. The veteran should be scheduled for a personal hearing before the RO and notified of such hearing at her current address of record. The transcript of such hearing should be associated with the claims file. If the veteran does not appear for the scheduled hearing, the nonappearance should be documented in the claims file. 9. Thereafter, the veteran's claim should then be readjudicated with consideration of all pertinent law, regulations, Court decisions and M21-1, Part III, 5.14(c). Any additional action required to comply with the notice and development requirements of the Veterans Claims Assistance Act of 2000 should also be undertaken. 10. If the veteran's claim remains denied, she and her representative should be provided with a Supplemental Statement of the Case, which includes any additional pertinent law and regulations, specifically to include M21- 1, Part III, 5.14(c). The applicable response time should be allowed. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran has the right to submit additional evidence and argument on the matter that the Board has remanded to the Regional Office. Kutscherousky v. West, 12 Vet. App. 369 (1999). WARREN W. RICE, JR. 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).