Citation Nr: 0126093 Decision Date: 11/08/01 Archive Date: 11/20/01 DOCKET NO. 00-11 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from September 1966 to April 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of November 1998 and December 1999 by the Department of Veterans Affairs (VA) Houston, Texas, Regional Office (RO). In the decisions, the RO concluded that the veteran had not presented new and material evidence to reopen a previously denied claim for service connection for post-traumatic stress disorder. A hearing was held at the Board in Washington DC in August 2001. REMAND 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). The Act is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). The new law eliminates the concept of a well- grounded claim, and redefines the obligations of the VA with respect to the duty to assist claimants in the development of their claims. First, the VA has a duty to notify the appellant and his representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103 (West Supp. 2001). Second, the VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A § 5103A (West Supp. 2001). Significantly, however, nothing in that law requires the VA to reopen a claim that has been disallowed except when new and material evidence has been secured and presented. See 38 U.S.C.A. § 5103(f). The VA has promulgated revised regulations to implement these changes in the law. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a) (West Supp. 2001)). The intended effect of the new regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. The Board finds, however, that the development which was accomplished is not adequate to comply with the VCAA. In this regard, the Board notes that in a written statement dated in August 1999, the veteran reported that he had been hospitalized for treatment of post-traumatic stress disorder at the VA medical Center in Houston in December 1998. The records from that hospitalization, however, have not been obtained. The Board also notes that a VA mental health outreach record dated in July 1999 indicates that the veteran was being referred to PEAC for assessment and treatment. However, the subsequent assessment and treatment records have not been obtained. Under the new act, the VA has an obligation to secure such records unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 38 U.S.C.A. § 5103A(b)(3) (West Supp. 2001). This is particularly true in light of the potential significance of the treatment records referred to by the veteran. Accordingly, a remand is required to obtain the records. If the additional medical evidence which is obtained includes records showing a diagnosis of post-traumatic stress disorder, then development with respect to the veteran's claimed stressor will be required. The veteran has alleged that he was assaulted by several other serviceman while he was in jail in service. The United States Court of Appeals for Veterans Claims (Court) has stressed the necessity of complete development of the evidence if a PTSD claim is based on an alleged personal assault. See Patton v. West, 12 Vet. App. 272, 276-78 (1999). In Patton, 12 Vet. App. at 278, the Court pointed out that there are special evidentiary development procedures for PTSD claims based on personal assault contained in VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c) (Feb. 20, 1996), and former MANUAL M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995). The general MANUAL M21-1 provisions on PTSD claims in 5.14 require: "In cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence." MANUAL M21-1, Part III, 5.14(b)(3). As to personal-assault PTSD claims, 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...do not file official reports either with military or civilian authorities." MANUAL M21-1, Part III, 5.14(c)(5). Further, the provisions of subparagraphs (8) and (9) indicate that "[b]ehavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor", that "secondary evidence may need interpretation by a clinician, especially if it involves behavior changes", and that "[e]vidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." The Court stated that when read together subparagraphs (8) and (9) show that in personal-assault cases the Secretary has undertaken a special obligation to assist a claimant producing corroborating evidence of an in-service stressor. The Board notes that the manual also provides that the PTSD stressor development letter used by ROs to solicit details concerning the in-service stressful incident may be inappropriate for this type of PTSD claim. Therefore, if the stressful incident is a personal assault, the RO is to use a special letter developed for this type of claim. If medical evidence of post-traumatic stress disorder is obtained, then the RO needs to complete its assistance to the veteran by following the procedures outlined in M21-1, such as sending the veteran the appropriate letter for developing secondary or alternative evidence. Accordingly, this case is REMANDED for the following: 1. The RO should obtain any medical records which are not already contained in the claims file, including those from the Houston VAMC. 2. If the additional medical evidence includes a diagnosis of post-traumatic stress disorder, the RO should then complete development of the evidence required for a PTSD claim based on an alleged personal assault, to include sending the veteran the appropriate letter for developing secondary or alternative evidence. The RO should also make a determination as to whether secondary evidence may need interpretation by a clinician, especially if it involves behavior changes. See VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c) (Feb. 20, 1996), and former MANUAL M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995). 3. The RO must review the claims file and ensure that all notification and development action required by the VCAA is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in 38 U.S.C. §§ 5102, 5103, 5103A, and 5107 and the implementing regulations are fully complied with and satisfied. 4. Thereafter, the RO should readjudicate the veteran's claim. If the benefit sought on appeal remains denied, the appellant and the appellant's representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. See 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. 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) (2001).