Citation Nr: 0126491 Decision Date: 11/16/01 Archive Date: 11/27/01 DOCKET NO. 96-42 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical & Regional Office Center in Fort Harrison, Montana THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Odlum, Associate Counsel INTRODUCTION The veteran had active military service from January 1971 to December 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 1995 rating decision from the Fort Harrison, Department of Veterans Affairs (VA) Medical and Regional Office Center (M&ROC). The M&ROC declined to reopen a claim of entitlement to service connection for a psychiatric disorder to include PTSD. In August 1999 the Board determined that new and material evidence had been submitted to reopen a claim of entitlement to service connection for PTSD, and remanded the claim to the M&ROC for further development and adjudicative actions. In December 2000 the M&ROC granted entitlement to a permanent and total disability rating for pension purposes. In August 2001 the M&ROC denied entitlement to service connection for PTSD on a de novo basis. The case has been returned to the Board for further appellate review. REMAND This claim must be afforded expeditious treatment by the M&ROC. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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 M&ROCs 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. In August 1999 the Board remanded the issue of service connection for PTSD for further development. In particular, the Board noted that the regulations pertaining to service connection for PTSD had been recently revised, and therefore not considered by the M&ROC. The Board requested the M&ROC to consider the claim under the new criteria for PTSD, as follows: "6. After undertaking any development deemed essential in addition to that specified above, the RO should adjudicate the issue of entitlement to service connection for post-traumatic stress disorder on a de novo basis." "If the benefit requested on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case, including those laws and regulations governing awards of service connection for post-traumatic stress disorder which were published in June 1999, and became effective March 7, 1997 (emphasis added)." Review of subsequent determinations shows that the M&ROC continued to apply the previous criteria for service connection of PTSD in denying the veteran's claim, in spite of the Board's instructions. In its remand, the Board also requested the M&ROC to perform development in accordance with M21-1, Part III, para. 5.14c, as one of the veteran's claimed stressors is based on an alleged personal assault. The Court has held that VA has undertaken a special obligation to assist a claimant in producing corroborating evidence of an inservice stressor involving personal assault. Patton v. West, 12 Vet. App. 272, 280 (1999). For example, the M21-1 provisions provide that a letter be sent to the veteran advising him to identify additional information sources regarding the personal assault. This letter provides various examples of such sources. See M21-1, Part III, para. 5.14c(4); M21-1, Part III, Exhibit B.11. While the M&ROC generally requested the veteran to provide more information concerning his personal assault, it did not provide him with the specific notice letter as to alternative or additional sources of information as illustrated in Exhibit B.11. See M21-1, Part III, para. 5.14c(4). The Court held that the M&ROC is responsible for assisting the claimant in gathering, from sources in addition to in- service records, evidence corroborating an in-service stressor, and by sending a special letter and questionnaire to the veteran. Patton, 12 Vet. App. at 281-282. The Board is obligated by law to ensure that the M&ROC complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the M&ROC is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and a further remand of the case will be mandated. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the issue on appeal must be remanded in order to ensure that the Board's remand directives are complied with. The Board notes that there is additional development which should be completed on remand. With respect to the alleged personal assault, the Board notes that behavior changes that occurred at the time of the incident may indicate the occurrence of an inservice stressor. See M21-1, Part III, para. 5.14(c)(7). The M21-1 provisions provide that secondary evidence may need to be interpreted by a clinician especially if it involves behavior changes. Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. See M21-1, Part III, para. 5.14(c)(8). In addition to holding that the M&ROC is responsible for assisting the claimant in gathering, from sources in addition to in-service records, evidence corroborating an in-service stressor, and by sending a special letter and questionnaire, the Court has also held that the M&ROC is responsible for assisting the veteran by carefully evaluating that evidence including behavior changes, and by furnishing a clinical evaluation of behavior evidence. Patton at 281-282. In light of the above, the Board is of the opinion that a VA medical examination is required for the purpose of evaluating the record for evidence, or lack thereof, that the veteran was personally assaulted in service. The Board also notes that the M&ROC has diligently attempted to obtain all records from all VA medical facilities reported by the veteran. In particular, the veteran has reported psychiatric treatment at the Portland VA Medical Center from 1975 to 1981. The M&ROC requested records from this facility, but was notified that they could not be located. It does not appear that the M&ROC notified the veteran of its failure to obtain records from this facility. 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). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of the with respect to the duty to assist, and supercedes the decision of the Court in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (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. VCAA, Pub. L. No. 106-475, § 7(b), 114 Stat. 2096, 2099-2100 (2000), 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions); see generally Holliday v. Principi, 14 Vet. App. 280 (2001); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). On August 29, 2001, the final regulations implementing the VCAA were published in the Federal Register. The portion of these regulations pertaining to the duty to notify and the duty to assist are also effective as of the date of the enactment of the VCAA, November 9, 2000. 66 Fed. Reg. 45,620, 45,630-45,632 (August 29, 2001) (to be codified at 38 C.F.R. § 3.159). Under the new law and implementing regulations, if the M&ROC is unable to obtain any of the relevant records sought, it shall notify the veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. 38 U.S.C.A § 5103A(b)(2)) (West Supp. 2001). The implementing regulations provide that such notice may be oral or in writing, but that any oral notice must be made part of the record. 66 Fed. Reg. 46,620, 45,631 (to be codified at 38 C.F.R. § 3.159(e)). In order to ensure that the new duty to assist has been complied with, the M&ROC should notify the veteran that it was unable to obtain records from the Portland VA medical Center (VAMC) pursuant to the new law. Id. On remand, the M&ROC should also consider whether any additional notification or development action is required under the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000); see also 66 Fed. Reg. 45,620, 45,630-45,632 (August 29, 2001) (to be codified at 38 C.F.R. § 3.159). Accordingly, this case is remanded to the M&ROC for the following: 1. The M&ROC should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA and non-VA, inpatient and outpatient, who may possess additional records pertinent to his claim. 38 U.S.C.A. § 5103A(b) (West Supp. 2001); Kutscherousky v. West, 12 Vet. App. 369 (1999). After securing any necessary authorization or medical releases, the M&ROC should make reasonable efforts to obtain legible copies of the veteran's complete treatment records from all sources adequately identified whose records have not previously been secured. 38 U.S.C.A. § 5103A(b), (c) (West Supp. 2001)); 66 Fed. Reg. 45,620, 45,630- 45,631 (August 29, 2001) (to be codified at 38 C.F.R. § 3.159(c)). Regardless of the veteran's response, the M&ROC should secure all outstanding VA treatment reports. All information which is not duplicative of evidence already received should be associated with the claims file. 2. With respect to the veteran's claim that he was sexually assaulted during Basic Training, the M&ROC should afford him the opportunity to submit any alternate available sources that may provide credible support to the inservice personal assaults to support his claim for service connection for PTSD. This should include the sending of a special letter and questionnaire pertaining to personal assault claims, as provided in M21-1, Part III, para. 5.14(c). The veteran is advised that this information is necessary to obtain supportive evidence of the stressful events and that he must be as specific as possible, because without such details, an adequate search for verifying information can not be conducted. The M&ROC 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 a request feasible. 3. If the M&ROC is unable to obtain any of the relevant records sought, it shall notify the veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. 38 U.S.C.A § 5103A(b)(2)); 66 Fed. Reg. 46,620, 45,631 (to be codified at 38 C.F.R. § 3.159(e)). The M&ROC should also advise the veteran of its inability to obtain records from the Portland VAMC pursuant to 38 U.S.C.A § 5103A(b)(2)) and 66 Fed. Reg. 45,620, 45,631 (to be codified at 38 C.F.R. § 3.159(e)). 4. Thereafter, the M&ROC should obtain a VA medical examination by an appropriate specialist for the purpose of making a determination as to whether the evidence establishes that the veteran was sexually assaulted in service, as well as the current nature of his PTSD, and its relationship to the alleged sexual assault. The claims file, a separate copy of this remand, and copies of the pertinent M21-1 criteria with respect to personal assault claims must be provided to the examiner for review prior and pursuant to conduction and completion of the examination and the examination report must be annotated in this regard. Any further indicated special studies, including psychological studies, should be accomplished. With respect to the alleged sexual assault during basic training, the examiner is requested to analyze the service personnel and medical records in light of the examples listed in M21-1, Part III, para. 5.14(c)(7). The examiner should determine whether there is inservice and/or post-service evidence of behavior changes at the time of any alleged stressor incident, which might indicate the occurrence of the assault. See M21-1, Part III, 5.14(c)(7), (8). If evidence of behavior changes is found, the examiner should render an opinion as to whether the behavior changes are related to the claimed sexual assault. In making the above determinations, the examiner should also specifically review and consider the veteran's post-service accounts, or lack thereof, regarding the reported sexual assault. The examiner should also determine whether the veteran has PTSD. The examiner should utilize the DSM-IV in arriving at diagnoses and identify all existing psychiatric diagnoses. If PTSD is diagnosed, the examiner should explain whether and how each of the diagnostic criteria is or is not satisfied. If PTSD is diagnosed, the examiner must identify the verified stressor(s) supporting the diagnosis. In particular, the examiner must determine whether the claimed sexual assault stressor supports the diagnosis of PTSD, if found. In general, the examiner should discuss the relationship of the alleged personal assault to service, if any. If a psychiatric disorder(s) other than PTSD is/are diagnosed on examination, the examiner must express an opinion as to whether any such disorder(s) is/are related to service on any basis. In making this determination, the examiner should consider the veteran's entire pre-service, inservice, and post- service medical history, as documented in the record. Any opinions expressed by the examiner must be accompanied by a complete rationale. 5. Thereafter, the M&ROC should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the M&ROC should review the requested examination report(s) and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand, and if they are not, the M&ROC should implement corrective procedures. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). In addition, the M&ROC must review the claims file to ensure that any other notification and development action required by the VCAA, Pub. L. No. 106-475 is completed. In particular, the M&ROC should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (see 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West Supp. 2001)) are fully complied with and satisfied. See also 66 Fed. Reg. 45,620, 45,630-45,632 (August 29, 2001) (to be codified at 38 C.F.R. § 3.159). 6. After undertaking any development deemed essential in addition to that specified above, the M&ROC should readjudicate the issue of entitlement to service connection for PTSD. In making this determination, the M&ROC must consider the claim under both the previous and amended criteria for service connection of PTSD (38 C.F.R. § 3.304(d)) and apply those regulations which are more favorable to the veteran. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). If the benefit requested on appeal is not granted to the veteran's satisfaction, the M&ROC should issue a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the M&ROC; however, the veteran is hereby notified that failure to report for a scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claim for service connection for PTSD. 38 C.F.R. § 3.655 (2001). RONALD R. BOSCH Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a decision of the Board is appealable to the Court. 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).