Citation Nr: 0206155 Decision Date: 06/11/02 Archive Date: 06/20/02 DOCKET NO. 95-18 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M.S. Lane, Associate Counsel INTRODUCTION The veteran served on active duty from July 1973 to April 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the veteran's claim of entitlement to service connection for PTSD. He subsequently perfected a timely appeal of that decision. The record reflects that, on June 20, 2000, the RO received additional documentary evidence from the veteran. Thereafter, on June 22, 2000, the RO forwarded this case to the Board for appellate review. The record reveals that the additional evidence submitted by the veteran was not reviewed by the RO and that it was not included in his claims folder before the case was forwarded to the Board. In an August 2000 decision, the Board denied the veteran's claim of entitlement to service connection for PTSD. The Board was subsequently advised that additional evidence germane to this issue was received by the RO in June 2000 but was not reviewed by the RO or included in the claims folder. In a statement submitted in January 2002, the veteran's accredited representative requested that the Board vacate its August 2000 decision on the basis that the veteran was denied due process by the failure of the RO to consider evidence made available to them prior to the transfer of his claims folder to the Board. In a letter dated in May 2002, the Board advised the veteran that his motion to vacate the August 2000 decision was granted on the basis that obvious error had been committed by the RO. Accordingly, the Board will now proceed to vacate the August 2000 decision and review his claim for service connection for PTSD on a de novo basis. The Board notes that, in August 2000, the veteran submitted further documentary evidence, which was accompanied by a waiver of initial RO consideration. At that time, the veteran also waived initial RO review of the evidence he submitted in June 2000. Under previous law, any additional evidence submitted directly to the Board following the certification of an appeal, or forwarded to the Board pursuant to 38 C.F.R. § 19.37(b), had to be returned to the agency of original jurisdiction (AOJ) for review; and, if the benefits sought on appeal were not granted, the issuance of a Supplemental Statement of the Case, unless that evidence was accompanied by a signed waiver of initial consideration by the AOJ. 38 C.F.R. § 20.1304(c) (2001). However, effective February 22, 2002, the provisions of paragraph (c) of 38 C.F.R. § 20.1304 were removed, so as to provide that such a waiver is no longer necessary for the Board to consider such evidence in the first instance. See 67 Fed. Reg. 3,099 (Jan. 23, 2002) (to be codified at 38 C.F.R. § 20.1304). The United States Court of Appeals for Veterans Claims (Court) has held that, where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version more favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of VA to do otherwise and the Secretary has done so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991); Baker v. West, 11 Vet. App. 163, 168 (1998). In this case, the Board finds that the question of which version of this regulation is more favorable is essentially irrelevant because the veteran did submit a waiver of initial AOJ consideration of the new evidence, as provided for under the old version of 38 C.F.R. § 20.1304(c). Thus, consideration of this evidence by the Board in the first instance is appropriate regardless of which version of this regulation is applied. FINDINGS OF FACT 1. In an August 2000 decision, the Board denied the veteran's claim of entitlement to service connection for PTSD. 2. The veteran was denied due process of law by the RO's failure to address evidence that was submitted by the veteran in June 2000 or to include that evidence in the claims folder before forwarding it to the Board. 3. The veteran has a current medical diagnosis of PTSD, and several medical providers have related the diagnosis to a claimed in-service sexual assault/rape. 4. The veteran's claimed in-service stressor is not related to combat. 5. The occurrence of the veteran's claimed in-service sexual assault/rape is supported by credible corroborating evidence. CONCLUSIONS OF LAW 1. The Board's August 2000 decision, which denied entitlement to service connection for PTSD, is vacated. 38 U.S.C.A. § 7104 (West 1991); C.F.R. § 20.904 (2001). 2. PTSD was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp. 2001); Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100-5103A, 5106-7 (West Supp. 2001); 66 Fed. Reg. 45,630-632 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.159); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2001); 67 Fed. Reg. 10,330 (March 7, 2002), (to be codified at 38 C.F.R. § 3.304(f)). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Order to Vacate In a decision dated in August 2000, the Board denied the veteran's claim of entitlement to service connection for PTSD. Thereafter, the Board was advised that additional evidence germane to this issue was received by the RO in June 2000 but was not forwarded to the Board pursuant to 38 C.F.R. § 19.37(b) for the Board's review. This evidence includes a statement from the veteran's brother that provides possible verification of an alleged in-service stressor. VA regulations provide that an appellate decision may be vacated by the Board at any time on the request of the appellant or his representative, or on the Board's own motion, when there has been a denial of due process. 38 C.F.R. § 20.904(a). The Board finds that its consideration of the veteran's claim of entitlement to service connection for PTSD in the August 2000 decision was not based on the complete record. Thus, the veteran's due process rights were violated. Therefore, the August 2000 decision, which denied service connection for PTSD, must be vacated. Accordingly, the Board's decision of August 2000, which denied entitlement to service connection for PTSD, is hereby vacated. 38 U.S.C.A. § 7104(a); 38 C.F.R § 20.904. The Board will now proceed to conduct a de novo review of this issue and a new decision will be entered. Service connection for PTSD Preliminary matter: Duty to Assist On November 9, 2000, the President signed the Veterans Claims Assistance Act of 2000 (VCAA), which substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (codified as amended at 38 U.S.C.A. § 5103 (West Supp. 2001)). VA has long recognized that the Department has a duty to assist the veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.103(a) (2001). Recent changes in law have amended the requirements as to VA's development efforts in this, and other pending cases, modifying and clarifying VA's duty to assist a claimant in evidentiary development. See VCAA, supra. See generally Holliday v. Principi, 14 Vet. App. 280 (2001). In addition, VA has published new regulations, which were created for the purpose of implementing many of the provisions of the VCAA. See 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)). Judicial case law is inconsistent as to whether the new law is to be given retroactive effect. The U.S. Court of Appeals for Veterans Claims has held that the entire VCAA potentially affects claims pending on or filed after the date of enactment (as well as certain claims that were finally denied during the period from July 14, 1999, to November 9, 2000). See generally Holliday v. Principi, 14 Vet. App. 280 (2001); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). That analysis would include cases which had been decided by the Board before the VCAA, but were pending in Court at the time of its enactment. However, the U.S. Court of Appeals for the Federal Circuit has recently held that only section 4 of the VCAA (which eliminated the well-grounded claim requirement) is retroactively applicable to decisions of the Board entered before the enactment date of the VCAA, and that section 3(a) of the VCAA (covering duty-to-notify and duty-to-assist provisions) is not retroactively applicable to pre-VCAA decisions of the Board. Bernklau v. Principi, No. 00-7122 (Fed. Cir. May 20, 2002); See also Dyment v. Principi, No. 00-7075 (Fed. Cir. April 24, 2002). Although the Federal Circuit appears to have reasoned that the VCAA may not retroactively apply to claims or appeals pending on the date of its enactment, the Court stated that it was not deciding that question at this time. In this regard, the Board notes that VAOPGCPREC 11-2000 appears to hold that the VCAA is retroactively applicable to claims pending on the date of its enactment. Further, the regulations issued to implement the VCAA are expressly applicable to "any claim for benefits received by VA on or after November 9, 2000, the VCAA's enactment date, as well as to any claim filed before that date but not decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001). Precedent opinions of the chief legal officer of the Department, and regulations of the Department, are binding on the Board. 38 U.S.C.A. § 7104(c) (West 1991). Therefore, for purposes of the present case, the Board will assume that the VCAA is applicable to claims or appeals pending before the RO or the Board on the date of its enactment. The VCAA contains a number of new provisions pertaining to claims development procedures, including assistance to be provided to claimants by the RO, and notification as to evidentiary requirements. The Board has carefully reviewed the veteran's claims file, to ascertain whether remand to the RO is necessary in order to assure compliance with the new legislation. The Board notes that the development of medical evidence appears to be complete. By virtue of the correspondence, the SOC, and the supplemental SOC's provided by the RO, the veteran has been given notice of the information and/or medical evidence necessary to substantiate his claim. Likewise, it appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims folder, and that he has not identified any other pertinent evidence, not already of record, which would need to be obtained for an equitable disposition of this appeal. Moreover, the veteran has been provided with a VA examination that thoroughly addressed the nature and etiology of his claimed disability. Accordingly, the Board finds that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertaining to his claim, under both former law and the new VCAA. 38 U.S.C.A. § 5107(a) (West 1991); Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096-98 (2000) (now codified as amended at 38 U.S.C. §§ 5103 and 5103A (West Supp. 2001)). The Board therefore finds that no useful purpose would be served in remanding this matter for more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no benefit flowing to the veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In fact, the Court has stated, "The VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims." Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 1991). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (2000); VCAA § 4, 114 Stat. 2096, 2098-99 (2000) (codified as amended at 38 U.S.C. § 5107(b) (West Supp. 2001)). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Factual Background The veteran's service personnel records are negative for any indication that he had service in the Republic of Vietnam. His DD Form 214 reveals that his military occupational specialty was that of "APR" fuels specialist. According to this document, the only award or commendation received during service was the National Defense Service Medal. Service medical records dated in early February 1975 show that the veteran was hospitalized at that time for problems associated with cold exposure. It was noted that he had spent 1 1/2 days in a camper in the mountains after having been caught in a snowstorm. Physical examination revealed that he was alert and well oriented, with no evidence of frostbite or any skin changes. The examiner noted a diagnosis of cold exposure with dehydration and disorientation. Approximately one week later, the veteran was transferred to a hospital ward. At that time, he complained of "dropping acid" the previous night, with the result that he was "still high" and that he felt as if no one were listening to him. The veteran reportedly refused medication, and was noted to have been somewhat angry about being hospitalized. He reported that the Office of Special Investigations (OSI) had been after him "for [the] past five months." He stated that he was being blamed for stealing something that he said he did not take. It was noted that he had received "two article 15's" and a suspension. An examiner noted a diagnosis of "character and behavior." In a clinical note dated the day after his admission to the hospital ward, it was indicated that he had been admitted after he had arrived at the ward "crying and saying he was 'flipped out'." Examination revealed no overt evidence of any psychosis. The examiner noted that he was doing quite well, but that there were certain "characterological problems" evident. He was discharged the following day with a referral to undergo future outpatient treatment. In a clinical record dated the day of his discharge from the hospital ward, it was noted that the veteran had a long history of difficulties in the military. It was explained that he had received two article 15's in basic training following an argument with his first sergeant. According to the veteran, he had been reassigned to a field he did not like following an OSI investigation over allegedly taking some equipment. He stated that he had been camping for one week prior to his admission, and had been locked out of his trailer. It was noted that he was subsequently hospitalized for cold exposure, where he responded well to the attention paid him. Mental status examination revealed that his mental state cleared rapidly in terms of "spaciness," but that he continued to appear somewhat depressed. The examiner indicated that he displayed a constricted affect with no blunting. His speech was found to be coherent and logical, though he reportedly appeared somewhat anxious, particularly concerning the OSI investigation. He denied experiencing suicidal ideation, and the examiner found that there was no evidence of any thought disorder. It was noted that he displayed a passive and demanding quality, particularly in his concern for a transfer. It was also noted that, during his hospitalization, he responded well to opportunities to ventilate in ward meetings. He reportedly felt willing to return to his duty station, and had expressed his desire to stay in the military. The examiner noted a clinical impression of adjustment reaction to adult life, with depression, passive-dependent, and immature personality features. The veteran's service medical records contain a number of affidavits from his former in-service associates. These affidavits contain statements detailing various behaviors on the part of the veteran, which led to disciplinary action. In a report of medical examination completed for separation in March 1975, it was noted that symptoms such as trouble sleeping, depression, and nervous trouble, which were reported by the veteran, all referred to the "adjustment reaction to adult life" for which he had received treatment in February 1975. Later in March 1975, the veteran underwent psychiatric evaluation. In the report of this evaluation, it was noted that he was currently facing court-martial for charges related to an incident in which he threatened to injure certain individuals, and for transporting a privately owned firearm in his van onto the base. It was also noted that he had experienced "difficulties in the Air Force since he joined 1 1/2 years ago." The examiner explained that the veteran's difficulties appeared to have begun "with the very process of joining." The examiner indicated that the veteran's father, who was a retired member of the Navy, had apparently wanted his son to also join the Navy. When the veteran informed his father that he was joining the Air Force, his father reportedly threw a freezer chest at him, and told him never to come home again. Once in the Air Force, the veteran apparently received an article 15 in tech school following an argument with his first sergeant. Upon arrival at his duty station, he found himself having difficulties when other people criticized or yelled at him, and felt that he was being criticized for minor matters. The examiner noted that there was an OSI investigation regarding his allegedly taking some equipment. The charges were eventually dropped, although he reported that the investigation had taken five months, and left him feeling very nervous and anxious. In the report of this evaluation, it was further noted that the veteran had been hospitalized in early February 1975 at March Air Force Base due to dehydration and disorientation secondary to being trapped for 1 1/2 days in the mountains by snow. While on the ward, he reportedly became very attached to some of the staff members "because he felt this was the first opportunity he had to talk to people." It was noted that he apparently kept coming back to the ward, and, shortly thereafter, he began crying and saying how depressed he was, with the result that he was admitted to the psychiatric ward for three days. The examiner noted that he appeared at that time to be very needy in terms of wanting someone to talk to and help him out. The examiner noted that, following the veteran's discharge from the psychiatric ward, he decided to turn himself in to the Social Actions Program. However, he subsequently felt that he was being subjected to even more pressure than before, and, shortly thereafter, was told that he would be discharged from the Air Force. The veteran was very upset at this, inasmuch as he had hoped to make a career of the Air Force. His identification card was taken from him, and he was told to report to CBPO to obtain a new one. At CBPO, he was reportedly told that he would get a card which expired in 30 days. This apparently upset him even more, since he had not realized that he was so close to being discharged. He then got into an argument with some people at CBPO, and was told to "shut up and leave." He reportedly felt that he was not being given a chance to express himself, got angry, and threatened to "kill certain individuals of those present." The examiner noted that he denied threatening to use a rifle. At that point, the veteran reported, he left CBPO, and went home to the barracks. Shortly thereafter, he was reportedly told by a friend, to whom he had sold his .22-caliber rifle, that the friend did not want the rifle, with the result that the veteran took the rifle back, and put it in his van to bring it on the base. He denied knowing that there was a rule against doing so, and that the only rule he was aware of was that he was not allowed to have the rifle in the barracks. He was subsequently arrested for the threat that he had made, and for bringing the rifle onto the base. While being processed for his arrest, he reportedly got into an argument with the security police regarding his concern over money which was apparently in his wallet at the time he was put in confinement. He found himself becoming more and more tense, and asked his lawyer for permission to see a psychiatrist. The examiner noted that his lawyer honored that request. Upon examination, the examiner found that the veteran appeared quite needy for interest and concern. Much of the interview was reportedly spent with the veteran expressing how difficult it was to get people to listen to him. His speech was found to be coherent and logical. His affect was notable for occasional expressions of anger when discussing problems which he had faced. There was no evidence of any hallucinations or delusions, or of suicidal ideation. He was found to be alert and well oriented, and he stated that his main concern was leaving the military, since he felt that he had nothing to gain by staying in. The examiner noted a diagnosis of explosive personality, which the examiner defined as a character-behavior disorder. In the opinion of the examiner, there appeared to be a long pattern of problems relating to the way the veteran was raised, and the behavior he had learned over the years. The examiner also noted a diagnosis of adjustment reaction of adult life stemming from his personality problems and the particular stresses he had been facing in the military. In the report of psychiatric evaluation, the examiner concluded that, in his opinion, the veteran was not suffering from any psychiatric illness which would warrant separation from service. The examiner determined that, at the time of events in March 1975, the veteran appeared to have been under a tremendous amount of stress. However, as far as could be ascertained, the examiner further determined that he was not suffering from any mental disorder or derangement which would have prevented him from knowing right from wrong. The examiner decided that, in any event, it was quite apparent that the veteran had been under a severe amount of stress, and that separation from the military appeared to be both in his best interests, and the best interests of the Air Force. In a report of a VA general medical examination conducted in February 1976, no psychiatric complaints or findings were noted. In a letter dated in November 1987, a private physician wrote that, in March 1985, the veteran was seen with what was felt to be "an anxiety depression." The physician explained that, at the time, he was experiencing considerable problems with his marriage and his job. He was reportedly placed on antidepressant medication, and showed some improvement. In the opinion of the physician, his mental condition had improved remarkably in the past year. It was noted that he no longer exhibited a marked amount of anxiety, and that his depression was much improved. In the report of a VA evaluation conducted in early February 1993, it was noted that the veteran had been referred for complaints of depression and PTSD. The examiner explained that a counselor at a local Vet Center had referred the veteran so that he could get medicine for depression and sleep problems. The examiner noted that he complained of experiencing depression for years, with an increase in insomnia and nightmares in the past few months. He denied appetite disturbance and episodes of crying, but stated that he was angry because a prior physician had refused to give him an antacid to go with the pain medication he had previously received. Upon examination, he reportedly showed good eye contact, with no unusual movements, and normal speech. His thought processes were found to be well organized, and no evidence was found of any auditory or visual hallucinations, overt paranoia, or delusions. His mood was found to be depressed and angry, and his affect was noted to be somewhat restricted. The examiner indicated that he was alert and well oriented. The examiner noted a clinical assessment of rule out PTSD. In a letter dated in March 1993, a private physician wrote that he had seen the veteran five days earlier for symptoms of anxiety and depression. The physician also noted was that the veteran had been evaluated for PTSD. In a letter dated in 1993, a VA counselor indicated that the veteran was currently receiving counseling for dysthymia. It was noted that the veteran's chief complaints centered around problems sleeping, chronic fatigue, poor concentration, difficulties with conflict resolution, impairment in social and professional relationships, and feelings of hopelessness. In a VA mental hygiene clinic report dated in March 1993, it was noted that the veteran was being followed at a local Vet Center for help with multiple psychiatric problems. The examiner indicated that the veteran had experienced episodes of explosive behavior and dysphoria, which had cost him jobs and relationships. The examiner noted a diagnosis of major depression. A medical report dated in May 1993 reveals that the veteran had requested counseling at a Vet Center in February of 1993. He apparently indicated that he had joined the Air Force six months after his 18th birthday, but then experienced "adjustment difficulties to military life" following basic training. He also reported experiencing interpersonal conflicts with his superiors. According to the veteran, he began using marijuana and cocaine as a means of escaping, and for stress reduction. He reported attempting to obtain counseling for his problems, but he stated that he was never able to receive any such counseling. He indicated that, prior to his discharge in 1975, he was accused of stealing aircraft parts. He stated that he was beaten by military police during the initial phase of the investigation for refusal to agree to having his vehicle searched. He further reported that he was raped and sodomized repeatedly by six cellmates during a one- month period of incarceration. According to the veteran, shortly thereafter, his military legal representative obtained his release, and demanded that the veteran be hospitalized and treated for his initial beating. According to the veteran, he made no disclosure of the nature of his sexual assault at that time. Describing the veteran's current status, the Vet Center counselor wrote that he presented himself as a person who had suffered much emotional pain and abuse frequently throughout his life. The counselor concluded that, as a result, he remained very sensitive to perceived injustices and mistreatment of individuals who lacked the means to stand up for themselves. It was noted that he continued to voice complaints of loss of interest in pleasurable activities, sleep disturbance, depressive episodes, constricted affect, anger mismanagement, difficulty with intimacy, chronic fatigue, obsessive behavior, problems with conflict resolution, and serious impairment in social and professional endeavors. The counselor noted diagnoses of dysthymia, PTSD, and mild obsessive-compulsive personality traits. In correspondence of May 1993, the veteran's private physician indicated that, in November 1987, he suffered a considerable amount of stress related to a court case. It was further noted that, in March 1993, he was seen for problems of depression. In the opinion of the physician, he had experienced recurrent bouts of anxiety and depression over a considerable number of years, which, according to the veteran, had been especially severe in the past year and a half. The physician noted that he was unsure as to whether or not anyone at VA had given him a diagnosis of PTSD. In a report of psychiatric evaluation conducted in November 1993 for the Department of Social Services Division of Disability Evaluation located in Sacramento, California, the veteran was described as a combat veteran. This report was apparently completed by Dr. HJ, a psychiatrist who had treated the veteran. It was noted that he had been involved in combat in Vietnam while serving with the United States Army. It was further noted that, upon his return from combat, he reportedly requested and received treatment for combat stress, which the psychiatrist noted was now known as PTSD. Dr. HJ indicated that, as a result, he had apparently been service-connected for that disability by VA. Due to his apparent involvement in combat, and his reported history of stress treatment, the Mississippi test for combat-related PTSD was administered. The psychiatrist noted that he scored well within the PTSD zone. Dr. HJ also noted that his PTSD checklist met all of the criteria necessary to support a diagnosis of PTSD. In December 1993, a psychiatrist reviewed the veteran's medical history for the Office of Medical Evaluations. It was noted that he had been granted disability benefits allowance based primarily on the November 1993 psychiatric evaluation by Dr. HJ, who had treated as well as examined the veteran. In the December 1993 review, the November 1993 examination was described as "brief," and as not containing a mental status examination. It was also noted that it did not contain a standard five axis DSM-III-R diagnosis. Although the psychiatrist noted that reference had been made by Dr. HJ to the Mississippi Test for Combat-Related PTSD, it was without any description of the nature of that specific test. The psychiatrist concluded that, aside from some general comments, there was no Medical Source Statement in the November 1993 report describing the veteran's residual functioning capacities and their relationship to his alleged mental disorder. The psychiatrist also reviewed a report dated in August 1993, which was also submitted by Dr. HJ. The psychiatrist concluded that it was sparsely detailed, containing statements such as "standard post-traumatic stress disorder" or "standard Vietnam veteran's behavior" substituted for the usual phrases associated with a mental status examination. Based on available information, the psychiatrist concluded that it was apparent that the veteran had a diagnosable mental disorder manifested by anxiety and depression. The psychiatrist further concluded, however, that the degree to which these conditions affected his current functioning was unclear, inasmuch as the conclusions reached did not come from any acceptable medical source. The psychiatrist therefore recommended that further development be undertaken. In a Vet Center treatment summary dated in February 1998, it was noted that, in March 1975, the veteran was reportedly accused of stealing aircraft parts, and put in a military jail. The veteran indicated that he was then raped by two men who stuffed a washcloth in his mouth at March Air Force Base in California on the night of March 17, 1975. He did not see his attackers closely because they covered his face and upper body with a blanket. During these alleged rapes, he was terrified of being killed. He reported that he felt too ashamed and fearful to report that incident to authorities or to anyone else. In this treatment summary, the veteran was described as having no psychiatric history prior to his military service. According to him, while in service, he was sexually harassed by a roommate who would masturbate while standing above the veteran's bed while he was attempting to sleep. The veteran reportedly warned his roommate to stop this behavior, and, when it continued, reported the behavior to a superior officer. The examiner noted that a psychiatric evaluation performed at the jail prior to discharge disclosed that the veteran appeared to be under a severe amount of stress. He reported that, since the time of his discharge from the military, he had been able to find jobs, but reportedly lost or quit these jobs due to interpersonal conflicts with co- workers and management staff. In the opinion of the examiner, the veteran was an individual consumed with rage about what had happened to him in the service. The examiner noted that, due to feeling ashamed and humiliated about his in-service rape, the veteran did not reveal what happened to him until recently. The examiner indicated that the post- traumatic symptoms of rage, hyperarousal, sleep difficulties, alienation, and intrusive thoughts about his rape had taken their toll on his social and occupational functioning since discharge. The examiner noted a diagnosis of PTSD, rule out intermittent explosive disorder. In September 1998, a VA psychological examination was accomplished. The examiner noted that the veteran's claims file was available for review. During the examination, the veteran reported that the initial traumatic event he experienced in service was being repeatedly harassed by a roommate in a sexual fashion. According to the veteran, this roommate would masturbate over him while he was sleeping. The veteran reportedly told his commanding officer about these circumstances, but was denied a transfer to another room, or, in the alternative, a transfer of his roommate. According to the veteran, this situation was remedied only when he got into a fight with his roommate, and beat him up. At that time, the veteran and his roommate were reportedly separated. The veteran reported that he then received an Article 15, and subsequent disciplinary action for the fight. The VA examiner noted that the veteran was later jailed for a period of 37 days following an argument with his master sergeant during discharge procedures. It was noted that, according to the veteran, on the occasion of his arrest, he was beaten with billy clubs by the arresting security guards when he did not cooperate in having his vehicle searched. The reported stated that he was subsequently raped by two other inmates who threatened to kill him if he talked about what had happened. According to the veteran, he did not talk about these traumatic events until approximately four years previous to the VA examination, when he was in treatment at the North Bay Veterans Center in California. In the report of his VA examination, the examiner noted that the veteran had given a long history of PTSD symptoms related to the sexually traumatic events which he experienced while in the military. These signs and symptoms reportedly included intrusive thoughts and images about his prior traumas. The veteran reportedly complained of distress upon exposure to things which reminded him of his military experience, as well as hypervigilance. He stated that he experienced "flashback-type" events, in which he vividly recalled the experience of his traumatic rape, and felt as if he were back in that situation. The veteran also gave a long history of irritability and outbursts of anger. The examiner noted that the veteran also endorsed signs and symptoms of major depression, including a chronically depressed mood, diminished interest in pleasurable activities, sleep problems, agitation, fatigue, concentration difficulties, and feelings of worthlessness. The VA examiner noted diagnoses of PTSD and major depression. The examiner further noted Axis IV diagnoses of sexual trauma experienced in the military, as well as unemployment, financial difficulties, and social isolation. The examiner concluded that the veteran met the diagnostic criteria for PTSD and major depression, which the examiner noted might in part be secondary to the PTSD. The examiner commented that, although it did not seem possible to verify the claimed sexual stressors, since there were no records to this effect in the service records, it was nonetheless the opinion of three VA rehab center clinicians who had worked with the veteran for a period of five years that the claimed traumatic events had taken place. It was reportedly felt to be quite likely that he would not have been forthcoming regarding these events at the time of their occurrence, and that, even were he to have been, they might not have been accurately recorded in his records. The examiner therefore concluded that the veteran's claimed stressors were credible and could result in chronic PTSD. In the statement received at the RO in June 2000, the veteran reiterated his assertion that he was raped while incarcerated at March Air Force base in 1975. He also asserted that the two Article 15's that he received in service arose out of the incident in which his roommate would masturbate while standing above his face. He indicated that he used foul language because he was upset that no action was taken to transfer his roommate. The veteran also argued that his PTSD began to develop shortly after the incident in which he was trapped in the snow for "six days". He reported that he subsequently used LSD as a method of self-medication for anxiety. In June 2000, the veteran also submitted a signed statement from his brother. The brother, EJ, reported that he was having dinner at his parents' house one night in 1975 when the veteran was home from the military. During this dinner, the veteran apparently reported that he had been raped in jail at March Air Force Base. EJ indicated that he and his father tried to help the veteran but could not. EJ also indicated that the veteran had since become very inclusive and withdrawn. In August 2000, the veteran also submitted a statement from an individual, RF, who reported that he first met the veteran while hitchhiking in the summer of 1976. RF explained that they got along very well and ended up hanging out together for a week. RF reported that he observed the veteran having terrible nightmares and that they eventually "told each other our personal stories". He noted that, among other painful experiences, the veteran told him that he was raped. Although the veteran reportedly did not go into details, he did tell RF that it was the most humiliating and violating experience that had ever happened to him. Analysis Pursuant to 38 U.S.C.A. §§ 1110 and 1131, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by service. "A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). The veteran seeks service connection for PTSD. Establishing service connection for PTSD requires (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f); Anglin v. West, 11 Vet. App. 361, 367 (1998); Gaines v. West, 11 Vet. App. 353, 357 (1998), Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Suozzi v. Brown, 10 Vet. App. 307 (1997). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, of the American Psychiatric Association (DSM- IV). See generally Cohen v. Brown, supra; 38 C.F.R. § 4.125 (2001). The evidence required to support the occurrence of an in-service stressor varies "depending on whether or not the veteran was 'engaged in combat with the enemy'. . . . Where . . . VA determines that the veteran did not engage in combat with the enemy . . . the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor." See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The requisite additional evidence may be obtained from sources other than the veteran's service medical records. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996), aff'd, 124 F.3d 228 (Fed. Cir. 1997) (table); see also Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); Doran v. Brown, 6 Vet. App. 283 (1994); Zarycki v. Brown, 6 Vet. App. at 98. Prior to March 7, 1997, governing regulations provided that service connection for PTSD required medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. If the claimed stressor was related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation would be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(f) (1996). However, on June 18, 1999, and retroactive to March 7, 1997, that regulation was amended to read as follows: Service connection for [PTSD] requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. If the evidence establishes that the veteran was a prisoner-of-war under the provisions of § 3.1(y) of this part and the claimed stressor is related to that prisoner-of- war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions and hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in- service stressor. 64 Fed. Reg. 32,807 (June 18, 1999), now codified at 38 C.F.R. § 3.304(f) (2001) (effective March 7, 1997). That amendment implemented the Cohen decision, which that had held that 38 C.F.R. § 3.304(f) did not adequately reflect the law of the governing statute, 38 U.S.C.A. § 1154(b). The effective date of the amendment was March 7, 1997, the date the Cohen decision was issued by the Court. More recently, section 3.304(f) was again amended, with specific regard to PTSD claims based upon personal assault. The regulation now reads: Service connection for [PTSD] requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. Although service connection may be established based on other in-service stressors, the following provisions apply for specified in-service stressors as set forth below: (1) If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. (2) If the evidence establishes that the veteran was a prisoner-of-war under the provisions of § 3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in- service stressor. (3) If a [PTSD] claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a [PTSD] claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 67 Fed. Reg. 10,330 (March 7, 2002), to be codified at 38 C.F.R. § 3.304(f). The effective date of the amendment was March 7, 2002, the date of its issuance as a final rule. When regulations are changed during the pendency of an appeal, the veteran is entitled to a decision on the claim under the regulation more favorable thereto. See Fischer v. West, 11 Vet. App. 121, 123 (1998), quoting Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). The Board observes that, in the March 2000 SSOC, the RO referred to the obsolete, "clear diagnosis" version of the regulation. If the present case turned upon the diagnosis, the Board would have to consider whether a remand of this issue might be necessary so that the RO could reconsider the matter under the new regulation. However, because the Board is not directly questioning the diagnosis of PTSD, it is the opinion of the Board that a remand would simply delay the resolution of this claim unnecessarily, with no benefit to the veteran. See Winters, Soyini, Sabonis, supra. Moreover, the 2002 amendment to section 3.304(f) also does not require further development of this case, because there is no unresolved factual issue as to the occurrence of the scenario which constitutes the claimed personal assault "stressor" in service. As will be discussed below, the Board believes that the veteran has submitted evidence sufficient to verify that the alleged in-service sexual assault did occur. The veteran's most prominent contention is that he has PTSD as a result of an incident in which he was raped by two individuals while in jail at March Air Force Base in March 1975. In support of this contention, he has submitted lay statements from two individuals, including his brother, who claim to have been told by the veteran in 1975 and 1976 that he was raped in service. He has also pointed to the opinions of several medical care providers who concluded that he has PTSD as a result of an in-service rape. The veteran has further asserted that his PTSD is also related to an incident in which he was locked out of a cabin and trapped in the snow, and to a series of incidents in which his roommate would masturbate while standing over his bed. The Board must review the claim on its merits and account for the evidence that it finds to be persuasive and unpersuasive and provide reasoned analysis for rejecting evidence submitted by or on behalf of the claimant. Gilbert, supra. For a claim to be denied on its merits, the evidence must preponderate against the claim. Alemany v. Brown, supra. The Board concludes that the competent and probative evidence of record supports a finding that the veteran has PTSD. The Board found the most probative evidence in this regard to be the report of the September 1998 VA examiner, who reviewed the veteran's claims folder and concluded that he did meet the diagnostic criteria for PTSD. The Board believes this opinion to be consistent with the several reports from Vet Center counselors who have treated the veteran. However, although the evidence does support a finding that the veteran has PTSD, the Board notes that the evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). If the claimed stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence from any source that corroborates the veteran's testimony or statements. YR v. West, 11 Vet. App. 393, 397 (1998); Cohen, 10 Vet. App. at 147. In the particular case of claimed personal assault, VA has established special procedures for evidentiary development. See VA Adjudication Procedure Manual M21-1 (hereinafter 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)). These procedures take into account the difficulty establishing the occurrence of the stressor through standard evidence, and the need for development of alternate sources of evidence. These provisions also provide an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred, to include medical records, military or civilian police reports, reports from crisis intervention centers, testimonial statements from confidants, and copies of personal diaries or journals. See Manual M21-1, Part III, 5.14(c)(8). The provisions of M21-1 dealing with PTSD are substantive rules that are the equivalent of VA regulations; VA is therefore required to follow these provisions. Patton v. West, 12 Vet. App. 272, 277 (1999); YR, supra, 11 Vet. App. at 398-99; Cohen, 10 Vet. App. at 139. Moreover, the 2002 amendments to 38 C.F.R. § 3.304(f), quoted above, have augmented the substantive law pertaining to such claims. The final requirement of 38 C.F.R. § 3.304(f) for service connection of PTSD is medical evidence of a nexus between the claimed in-service stressor and the current disability. In cases of claimed personal assault, VA recognizes that some evidence may require interpretation by a clinician to establish a relationship to the diagnosis, per Manual M21-1, Part III, paragraph 5.14c(9). Accordingly, the general rule that post-service medical nexus evidence cannot be used to establish the occurrence of the stressor is not operative in such cases. Patton, 12 Vet. App. at 280. See Cohen, 10 Vet. App. at 145; Moreau, 9 Vet. App. at 396. The starting point for any determination with regard to PTSD is whether there is a "stressor." Under all versions of the controlling regulation, there must be credible supporting evidence that the claimed in-service stressor(s) actually occurred. 38 C.F.R. § 3.304(f). The question of whether the veteran was exposed to a stressor in service is a factual determination, and VA adjudicators are not bound to accept such statements simply because treating medical providers have done so. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). The existence of an event alleged as a stressor that results in PTSD (though not the adequacy of the alleged event to cause PTSD) is an adjudicative, not a medical determination. See Zarycki v. Brown, 6 Vet. App. 91 (1993). Although it appears that the veteran did report to a private physician, Dr. HJ, that he engaged in combat in Vietnam, the veteran has never specifically alleged to VA that he ever served in Vietnam or that he ever engaged in combat while on active duty. In addition, the veteran's service records indicate that he had no service in Vietnam or in combat. Moreover, his reported in-service stressor of rape is not related to combat. Thus, his assertions, standing alone, cannot, as a matter of law, provide evidence to establish that an in-service event claimed as a stressor occurred. See Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 7 Vet. App. 70, 76 (1994). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). This does not mean that he cannot establish that the alleged in-service events occurred, it only means that other "credible supporting evidence from any source" is necessary. See Cohen. Since there is a diagnosis of PTSD here, it must be determined whether there is credible supporting evidence of the veteran's alleged stressor, i.e., whether service records or other independent credible evidence corroborates the alleged stressor. See Dizoglio, supra. The United States Court of Appeals for Veterans Claims (Court) has held repeatedly that, where there is a current diagnosis of PTSD, it must be presumed that the physician(s) making the diagnosis accepted the sufficiency of the in- service stressor(s). Nevertheless, since the diagnostician does not generally have firsthand knowledge of whether a stressor actually occurred, credible evidence is required to verify that element. Pentecost v. Principi, ___ Vet. App. ___, No. 00-2083, slip op. at 3 (May 24, 2002). Thus, even though the September 1998 VA examiner believed that the veteran's statements regarding his in-service rape were credible, there must be other credible evidence of record to verify that it in fact occurred. In this case, the veteran's service records reflect that he exhibited a number of behavioral problems and received several disciplinary actions while on active duty. Evidence of such problems can serve to corroborate a report of rape if the problems demonstrate that a change occurred in the claimant's behavior around the same time as the alleged sexual assault occurred. See Manual M21-1, Part III, paragraph 5.14c (Feb. 20, 1996), supra. However, in this case, it appears that the veteran's problems clearly began prior to the imprisonment in which the alleged rape occurred. Furthermore, in light of the substantial behavioral problems exhibited by the veteran prior to his incarceration in March 1975, it is difficult to ascertain any worsening of that behavior following his release from incarceration. Thus, there appears to be no evidence of a "change" in behavior during the period in question that could support his allegation of having been raped in jail. Accordingly, the Board finds that the evidence of behavioral problems and disciplinary actions in service offers no guidance in determining whether the alleged rape actually occurred. Because corroborative evidence of the claimed in-service rape cannot be found by looking for changes in the veteran's behavior, the Board has looked to other alternative sources for corroboration. In particular, the Board notes that the provisions of M21-1 and the new version of 38 C.F.R. § 3.304(f) specifically note that testimonial statements from confidants and family members can serve to corroborate the occurrence of a stressor. As discussed above, the veteran has submitted statements from two individuals who reported that the veteran told them about the rapes shortly after they occurred. The first statement was from the veteran's brother who claimed that the veteran told him about the rape when he was home from the military in 1975 and they were having dinner at his parents. The second statement was from RF, who reported that he first met the veteran while hitchhiking in the summer of 1976. RF explained that they got along very well and ended up hanging out together. He reported that he observed the veteran having terrible nightmares and that they eventually shared personal information, which included the veteran informing him of his rape in service. Thus, these statements constitute evidence that the veteran reported the occurrence of the alleged in-service rape within a short period of time after it occurred. Thus, Board finds that there is corroborative evidence of record showing that the veteran was the victim of sexual assault while on active duty. See M21-1, Part III, 5.14(c)(2), (3), (4), (7), (8); see also Patton, supra. As discussed above, the record reflects that the veteran was afforded a VA examination in September 1998 during which he was given a diagnosis of PTSD. The examiner explained that his diagnosis was specifically based upon the veteran's alleged in-service rape. Thus, there is credible evidence of record showing that the alleged in-service rape occurred, and competent evidence indicating that the veteran has PTSD as a result of that rape. Accordingly, the Board finds that service connection for PTSD, resulting from an in-service sexual assault, is warranted. See 38 C.F.R. § 3.304(f); see also M21-1, Part III, 5.14(c). The Board notes in passing that the veteran has reported other in-service stressors that he believed contributed to PTSD. He has alleged that the disability was related to the incident in which he was trapped in the snow, and to the incidents in which his roommate would stand over him and masturbate while he was trying to sleep. The Board notes that it does not appear that any examiner has ever found that these incidents contributed to his development of PTSD. In any event, the Board has already determined that service connection is warranted for PTSD based upon his in-service rape. Thus, further discussion regarding the other alleged in-service stressors is moot because the benefit sought on appeal has been granted. In summary, the Board concludes that entitlement to service connection for PTSD, resulting from an in-service sexual assault, is warranted. Accordingly, the benefit sought on appeal is granted. ORDER The August 2000 decision, wherein the Board denied entitlement to service connection for PTSD, is vacated. Entitlement to service connection for PTSD is granted. RONALD R. BOSCH Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.