Citation Nr: 0200828 Decision Date: 01/24/02 Archive Date: 02/05/02 DOCKET NO. 01-06 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Pomeranz, Associate Counsel INTRODUCTION The appellant served on active duty from February 1958 to April 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2000 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Boston, Massachusetts. According to military personnel records, the appellant was sentenced before a General Court Martial in April 1959 to a bad conduct discharge and one year of confinement at the U.S. Disciplinary Facility in Fort Leavenworth, Kansas. However, the Board notes that in August 1972, the appellant's discharge was upgraded to under honorable conditions by the Air Force Board for the Correction of Military Records, thereby entitling him to basic eligibility for VA benefits. REMAND 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). 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 App. 477 (1999), withdrawn sub nom.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). Because of the change in the law brought about by the VCAA, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. In addition, because the RO has not yet considered whether any additional notification or development action is required under the VCAA, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). Therefore, for these reasons, a remand is required. 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. In the instant case, the appellant maintains that he developed PTSD as the result of a sexual assault that occurred during service. 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. See 38 C.F.R. § 3.304(f) (2000); Cohen v. Brown, 10 Vet. App. 128, 139-143 (1997). In a November 2000 rating action, the RO denied the appellant's claim for service connection for PTSD primarily on the basis there was no competent evidence of record to corroborate that he was actually sexually assaulted during service. However, pertinent provisions of Manual M21-1 specifically address the types of documentation that may be used to corroborate the occurrence of a stressor where the alleged stressor event is physical or sexual assault. See Cohen, 10 Vet. App. at 128; M21-1, Part III, Change 49 (February 1996) par. 5.14c. See also YR v. West, 11 Vet. App. 393, 399 (1998). In November 2001, a hearing was conducted at the RO before the undersigned Board member. At that time, the appellant testified that during service, in approximately August 1958, he was stationed at the Moriarty Air Force Station in Moriarty, New Mexico. (T.4,14). The appellant stated that during that period of time, he attended a party in Santa Fe and was introduced to a Mr. D.I., who told him that he was a Marine from Camp Pendleton and that he was AWOL (absent without leave). (T.5,6). He noted that at present, Mr. I. was a nationally known radio personality. (T.6). According to the appellant, after the party, he accepted Mr. I.'s invitation to drive to Tijuana, Mexico. (Id.). The appellant revealed that they first drove to a friend's house in order to get ready for the trip. (Id.). He stated that while they were at the house, Mr. I. sexually assaulted him. (T.7,8). According to the appellant, during the assault, he passed out because he had been drinking. (Id.). The appellant indicated that the next day, Mr. I. drove him back to Santa Fe. (T.8). He noted that the did not seek medical treatment or tell any of his superior officers at the Air Force base, and that he started drinking. (T.9). The appellant revealed that the Santa Fe police then picked him up and he was brought to the police station. (Id.). According to the appellant, he told them about the assault and subsequently, the Santa Fe police notified the military police. (Id.). The appellant stated that Mr. I. was picked up and he identified him as his attacker. (Id.). According to the appellant, the military police then starting fighting with the civilian police over jurisdiction of the case. (Id.). The appellant revealed that the police then informed him that because Mr. I.'s family had connections in Hollywood, that he should forget about his case. (Id.). The appellant reported that upon his return to the base, he told the chaplain about his assault, and that he also told a Sergeant W. who then talked with a Captain R. (T.11). He noted that no action was taken and that he was again told to drop his case. (Id.). The appellant reported that at present, he was unable to obtain the Santa Fe police records. (T.10). The appellant indicated that after his discharge, he continued to drink in order to forget about the assault. (T.14). He stated that he eventually stopped drinking and remained sober for 15 years. (Id.). However, he reported that in approximately 1999, he heard Mr. I. on the radio and his voice triggered memories of the sexual assault. (T.3). He noted that he started drinking again and eventually sought treatment at the Brockton VAMC. (T.3). The appellant reported that he was subsequently evaluated at the National Center for PTSD and was diagnosed with PTSD. (T.5). He stated that he was currently receiving treatment for his PTSD at the VA Medical Centers (VAMC's) in Brockton, West Roxbury, and Jamaica Plains, and at the O'Neill Health Clinic, a private facility. (T.2). The Board notes that the appellant's service medical records are silent as to any complaints of sexual assault during his period of active military service. The appellant's personnel records show that in August 1958, the appellant was stationed at the Moriarty Air Force Station. In December 1999, the appellant underwent a VA examination. At that time, he gave a history of his alleged sexual assault during service. The appellant stated that following the assault, he blocked it out of his memory for 40 years until 1999 when he heard Mr. I.'s voice on the radio and memories of the assault were triggered. Following the mental status evaluation, he was diagnosed with the following: (1) chronic PTSD, and (2) alcohol dependency, in partial remission. A Report of Psychological Assessment for the National Center for PTSD shows that in July 1999, the appellant was referred to the Center in order to be evaluated for a broad range of emotional difficulties which he believed were associated with an alleged in-service sexual assault. Following the mental status evaluation, the appellant was diagnosed with the following: (Axis I) PTSD (delayed onset) in partial remission, (Axis IV) problems with primary support group; problems related to social environment, and (Axis V) Global Assessment of Functioning (GAF) score of 45. A private medical statement from Ms. J.B.L., Director of the O'Neill Health Clinic, dated in July 2000, shows that at that time, Ms. B.L. stated that the appellant was a client of the O'Neill Health Clinic and that he received primary and episodic care. According to Ms. B.L., the appellant's diagnoses included depression and PTSD. A medical report from the Massachusetts Department of Transitional Assistance, dated in February 2000, shows that at that time, the appellant indicated that he was receiving treatment for his PTSD at the Brockton VAMC, the National Center for PTSD, and at the Veterans Outreach Center. A VA medical statement from Ms. P.A.M., M.S.W., dated in October 2001, shows that at that time, Ms. M. stated that the appellant had been diagnosed with PTSD as a result of sexual trauma while enlisted in the Air Force and stationed in New Mexico. Ms. M. indicated that the appellant had repressed the memories of the trauma, but had exhibited the impact of the event throughout his adult life by behaviors that were often seen in trauma victims, including alcoholism and anger management problems. A lay statement from Mr. R.R., dated in August 2001, shows that at that time, Mr. R. indicated that he had served with the appellant at the Moriarty Air Force Station. Mr. R. indicated that late in the summer of 1958, he had attended a party with the appellant and they had met a Marine named D. Mr. R. noted that he could not remember D.'s last name. According to Mr. R., the appellant and D. said they were going to Tijuana. Mr. R. reported that when he saw the appellant one week later and asked him about the trip, the appellant "snapped" and told him to mind his own business. In the instant case, the Board notes that there is no indication that the RO attempted to verify the stressor information provided by the appellant. The Board observes that while the appellant's personnel records are associated with the claims file, there is no indication that the RO attempted to obtain the alleged police report from the Santa Fe police department. As noted above, pertinent provisions of Manual M21-1 specifically address the types of documentation that may be used to corroborate the occurrence of a stressor where the alleged stressor event is physical or sexual assault. See YR, 11 Vet. App. at 399. Certain provisions of Manual M21-1 are the equivalent of VA regulations, and the Secretary must comply with them. See Cohen, 10 Vet. App. at 128; M21-1, Part III, Change 49 (February 1996) par. 5.14c. In addition, the Board notes that in the appellant's November 2001 Travel Board hearing, he testified that he was currently receiving treatment for his PTSD at the Brockton, West Roxbury, and Jamaica Plains VAMC's, and at the O'Neill Health Clinic, a private facility. However, the evidence of record is negative for any treatment records from the above medical facilities. Moreover, there are no medical treatment records from the National Center for PTSD or from the Veterans Outreach Center. Inasmuch as the VA is on notice of the existence of additional VA and private records, these records should be obtained prior to any further appellate review of this case. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); see generally Murincsak v. Derwinski, 2 Vet. App. 363, 372-73 (1992). As additional action by the RO may be helpful in either obtaining such putative records, or documenting information that the medical records cannot be obtained, further development in this regard is warranted. The case is therefore REMANDED for the following actions: 1. The RO must review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied. 2. The RO should, in accordance with Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (codified as amended at 38 U.S.C.A. § 5103A (West Supp. 2001)), request that the appellant identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who had treated him at any time including following service, for a psychiatric disability, to include PTSD. With any necessary authorization from the appellant, the RO should attempt to obtain copies of pertinent treatment records identified by the appellant in response to this request, which have not been previously secured, to specifically include outpatient treatment records from the Brockton, West Roxbury, and Jamaica Plains VAMC's, and medical treatment records from the O'Neill Health Clinic, the National Center for PTSD, and the Veterans Outreach Center. The RO should also inform the appellant of any records it has been unsuccessful in obtaining as provided under Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (codified as amended at 38 U.S.C.A. § 5103A (West Supp. 2001)). 3. The RO should consult M21-1, Part III, Change 49 (February 1996) par. 5.14c, "PTSD Claims Based on Personal Assault," regarding the need for additional development to corroborate the appellant's claim. The RO should make all reasonable attempts to obtain other records that may be needed, to specifically include any reports from the Santa Fe police department, the military police, or any other military law enforcement. It may be necessary to call the unit at the military installation where the records may be located. 4. Regarding any development letter for PTSD claims based on personal assault, the RO should consider M21- 1, Part III, Change 55 (April 1996), Exhibit A.4, "Suggested Attachment To Letter To Veteran Requesting PTSD Information Concerning An In-Service Personal Assault" or an attachment developed locally. 5. Following the above, the RO must make a specific determination, based upon the complete record, as to whether the appellant has any verified stressors. If the RO determines that the appellant does have any verified stressors they should specifically be noted. 6. If, and only if, the RO determines that the record establishes the existence of a stressor or stressors, the appellant should be afforded a VA examination by a psychiatrist to determine the presence of PTSD. The RO must specify for the examiner the stressor or stressors that the RO determined is (are) established by the record, and the examiner is to be instructed that only those events can be considered for the purpose of determining whether the appellant was exposed to a stressor in service. The examination report should include a detailed account of all pathology found to be present. All necessary special studies or tests are to be accomplished. In addition, the examiner should address the following: (a) whether the stressor(s) determined by the RO to actually have occurred was/were sufficient to produce PTSD, (b) whether the appellant meets the diagnostic criteria for PTSD under the American Psychiatric Associations' Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, and (c) whether there is a link between current symptoms and the stressor or stressors specified by the RO as established by the record. The examination report should include a complete rationale for all opinions expressed. The claims folder must be made available to the examiner prior to the examination. 7. The RO should then review the claims file to ensure that all of the foregoing requested development has been completed. After undertaking any additional development deemed appropriate in addition to that requested above, the RO should re-adjudicate the issue of entitlement to service connection for PTSD, to specifically include consideration of Manual M21-1, Part III, 5.14(c) and Patton V. West, 12 Vet. App 272 (1999). If the benefit sought on appeal remains denied, the appellant and the appellant's representative, if any, 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 issue currently on appeal. An appropriate period of time should be allowed for response. The purpose of this remand is to obtain additional development. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified; however, the appellant is advised that failure to cooperate by not reporting for any scheduled examinations may result in the denial of the claim. 38 C.F.R. § 3.655 (2000). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. 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. ROBERT E. SULLIVAN 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).