Citation Nr: 0309162 Decision Date: 05/16/03 Archive Date: 05/27/03 DOCKET NO. 96-48 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant served on active duty from November 1981 to November 1984, and from January 1991 to April 1991. This case comes to the Board of Veterans' Appeals (the Board) on appeal from an October 1995 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The RO in Philadelphia, Pennsylvania, presently has jurisdiction over this case. No further action will be taken with regard to the appellant's request for a hearing before the Board. She did not appear for her hearing scheduled on April 11, 2003, and no explanation for her failure to report or a request to schedule a new hearing has been submitted in connection with this appeal. REMAND Notwithstanding the efforts undertaken by the RO to prepare this case for appellate review, the Board finds that a remand is in order. Veterans Claims Assistance Act of 2000 The Board will remand the appellant's claim of service connection for PTSD to ensure full and complete compliance with the enhanced duty-to-notify and duty-to-assist provisions enacted by the Veterans Claims Assistance Act of 2000 (VCAA) Pub. L. No. 106-475, 114 Stat. 2096 (2000) (the VCAA) [codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, 5107], as this claim was pending as of the date of passage of this law, November 9, 2000. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991) (where law/regulation changes after claim has been filed, but before administrative or judicial appeal process has concluded, version most favorable to claimant should apply). The United States Court of Appeals for Veterans Claims (the Court) has held that all provisions of the VCAA are potentially applicable to claims pending on the date of the law's enactment, and that concerns of fundamental fairness and fair process demanded further development and readjudication under the VCAA by the lower adjudicatory authority (the Board and RO). See Holliday v. Principi, 14 Vet. App. 280 (2001), mot. for recons. denied, 14 Vet. App. 327 (per curium order), mot. for full Court review denied, 15 Vet. App. 21 (2001) (en banc order). Regarding its authority to review the Board's decision on appeal, the Court in Holliday stated that even assuming that it could divine in the first instance on the particular facts of a particular case that no amount of additional evidence could change an adverse outcome, it could not obviate in the first instance the requirement for VA to provide notice to the claimant as to what was required for a claim to be successful under the VCAA's newly-created duty-to-notify provisions, 38 U.S.C. §§ 5102(b), 5103(a). Id; see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (when VA receives substantially complete application for benefits, it has obligation to notify claimant of any information and medical or lay evidence necessary to substantiate the claim). In this case, the VCAA-notice letter sent to the appellant by the RO in May 2002 is inadequate for purposes of this appeal as the content of that letter addressed an unrelated claim of service connection for depression based on in-service exposure to environmental hazards. It is clear from the Court's recent case law that the VCAA's duty-to-notify provisions and all assistance provided therein must be specific to the claim or claims under consideration. Quartuccio, 16 Vet. App. 183 (2002); see also Charles v. Principi, 16 Vet. App. 370 (2002). And, as will be set forth in greater detail below, this requirement is particularly important with respect to claims of service connection for PTSD based on personal assault. The Board must therefore remand the appellant's PTSD claim because the record does not show that she was provided proper notice under the VCAA. Regulatory amendments The Board notes that the regulation governing the award of service connection for PTSD, 38 C.F.R. § 3.304(f), was amended in June 1999. See 64 Fed. Reg. 32807 (June 18, 1999). The new version of the regulation is effective from March 7, 1997, and hence, the revised version must be considered, which has not been done in this case, to include when the RO readjudicated the claim by supplemental statement of the case in November 2002. Of significance here is the change to section 3.304(f) which eliminated the requirement for a "clear diagnosis" of PTSD and replaced it with the criteria that an award of service connection depended on whether there was medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), which the Board observes is a reference to a diagnosis made on the criteria set forth in the DSM-IV. In its decisions issued with this appeal, the RO applied the now-deleted "clear diagnosis" standard. As additional evidentiary development will be required, to include stressor-verification development, the Board believes that the RO should have the appellant re- examined by VA in order to determine whether she has a DSM-IV diagnosis of PTSD based on her reported stressors and a complete review of all the evidence in the claims file. In the Board's view, the appellate record does not at this time contain sufficient medical evidence to decide this claim. See 38 U.S.C.A. § 5103A(d)(1) and (2), as amended by the VCAA. The Board notes as well that 38 C.F.R. § 3.304(f) was amended for a second time in March 2002, again, during the pendency of this appeal. See 67 Fed. Reg. 10332 (Mar. 7, 2002). This regulation is specifically germane to the development and adjudication of this claim as the revision involves the standard of proof and the type of evidence necessary to substantiate a claim of service connection for PTSD based on personal assault. It also specifically provides that VA will not deny this type of PTSD claim 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. 38 C.F.R. § 3.304(f)(3) (2002). The record shows that the RO sent the appellant PTSD-personal assault development letters in 1996 and 1999, predating the revised section 3.304(f)(3), and although these letters set forth many of the same requirements contemplated by the revised regulation, they do not specifically advise her in the manner described by this new regulation. Given the other deficiencies described above with regard to procedural due process and evidentiary development of this case, the Board finds that full and complete compliance with the amended section 3.304(f)(3) is required. Because the above-cited regulations changed during the pendency of this appeal, the appellant is entitled to the application of the versions of the regulations that are more favorable to her. Karnas, 1 Vet. App. 308 (1991). In this case, the appellant has not been notified of the changes in the regulations described above and has not been afforded any opportunity to present relevant argument. Evidentiary development 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. Specifically, additional evidentiary development is required, to include stressor- verification development and the scheduling of the appellant for a VA examination to determine whether she has a DSM-IV diagnosis of PTSD based on her reported stressor and a complete review of all the evidence in the claims file. However, it is the RO's responsibility to ensure that all appropriate development is undertaken in this case. The Board also notes that precedent holdings of the Court provide specific guidance for the adjudication of PTSD claims based on non-combat stressors, at issue in this case. See Patton v. West, 12 Vet. App. 272 (1999) (verification of non- combat stressors); Suozzi v. Brown, 10 Vet. App. 307 (1997) (sufficiency of information to verify stressors); Cohen v. Brown, 10 Vet. App. 128 (1997) and Moreau v. Brown, 9 Vet. App. 389 (1996). In the Patton case, the Court found error in the Board's decision because it did not discuss the special evidentiary procedures for the development of PTSD claims based on non-combat stressors as established by VA guidelines. Patton, 12 Vet. App. 272 (1999). Where, as in this case, the claimant did not serve in combat and the claimed stressor is not related to combat, lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Id. citing West (Carelton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In these types of cases, special development procedures for non-combat stressors are required pursuant to VA's ADJUDICATION PROCEDURE MANUAL (the M21-1) in order to provide the veteran-claimant every opportunity to verify the occurrence of the claimed stressor. See M21-1, Part III, Section 5.14 (Mar. 2002). In light of the Court's precedent holdings, the Board finds it necessary to address the matter of whether there is sufficient corroboration of the appellant's stressor (in- service rape and sexual harassment) upon completion of the special development procedures under M21-1, Part III, Sec. 5.14, and upon completion thereof, further medical development to determine whether any "markers" or "behavioral changes" that occurred at or close in time to the alleged incident could possibly indicate the occurrence of the stressor, as described in detail in the M21-1. In this particular case, the RO determined in its November 2002 supplemental statement of the case that review of the appellant's service personnel records (201 file) would be "useless" because she failed to provide more specific and detailed information concerning her alleged stressors. However, the Board reviewed the documents in the appellant's 201 file, which are of record, and found that in the latter half of 1982 while stationed at the Walter Reed Army Medical Center (WRAMC), she received a negative performance evaluation (compared with her other evaluations) as well as non-judicial punishment involving a dispute with a superior officer over an order she refused to obey. Although she has not been forthcoming with specific details, the appellant has indicated that all of her alleged stressors occurred at WRAMC. The M21-1 manual provisions described above as well as the revised section 3.304(f)(3) criteria identify job- performance and related incidents (e.g., deterioration in work performance and disregard for military authority) as possible "markers" that could be used to corroborate an alleged stressor. Therefore, in the Board's view, the 201 file reports, when read together with other evidence, namely, the VA outpatient treatment report dated in August 1994 (which related her account of an in-service rape ten years ago, corresponding to her time at WRAMC) and her September 1995 claim statement and the report of the October 1995 VA examination (which each alluded to her account of seeing private psychiatrists and therapists soon after service for the problems she encountered at WRAMC), indicates that further "markers" development of her case is needed. There also is shown in this case a subsequent history of mental decompensation in the post service period, not otherwise suggested by the service medical and personnel records, which in the Board's opinion, requires further expert psychiatric analysis to determine whether the appellant's diagnosis and clinical history are consistent with the tell-tale signs of PTSD based on the alleged rape/harassment stressors (which by all accounts of record will never be affirmatively verified by official record). With respect to the issue of stressor-verification, it is noted that in Suozzi, the Court expressly held that a veteran need not prove "every detail" of an alleged stressor. Id. at 311. In addition, in Moreau, the Court stated that credible supporting evidence of a stressor may be obtained from service records or "other sources." Id. at 395. The Board is of course aware that the appellant has been less than cooperative in the development of her PTSD claim (she failed to report for two hearings and never responded to the RO's 1996 and 1999 personal assault development letters). However, the procedural due process requirements imposed by the VCAA as well as by the regulation changes and Court decisions dealing with PTSD-personal assault cases sets forth specific and unambiguous development standards that must be met before the Board issues a final decision on the merits. Accordingly, although the Board sincerely regrets the additional delay, the case is REMANDED for the following: 1. The RO must review the claims file and ensure that all notification and development action required by the VCAA is completed under 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002), including written notice of the evidence, if any, the appellant is expected to provide in support of the claim and the evidence, if any, that the RO will obtain for her. In particular, this notice should advise the appellant that she may submit any corroborating lay and/or medical evidence she may have pertaining to treatment for her PTSD symptoms. 2. The RO should assist the appellant in obtaining any identified evidence, as appropriate. If she identifies medical treatment and provides specific dates, all VA records identified in this manner that have not already been associated with the claims file should be obtained pursuant to established procedures. With regard to any private medical treatment, if identified as such, after first providing her appropriate releases to obtain such records (VA Form 21-4142), attempts to secure copies of records pertaining to any indicated private physicians and/or facilities should be undertaken. The RO should proceed with alternative search efforts for any medical records that may have been transferred to another medical facility or retired. All records received in response to the request should be associated with the claims folder. The RO should proceed with all reasonable follow-up referrals that may be indicated by the inquiry. All attempts to obtain records which are ultimately not obtained should be documented, and in accordance with the VCAA and implementing regulations published in August 2001, the RO should notify the appellant of the records it was unable to obtain, briefly explain the efforts made to obtain such records, and describe any further action that the RO will take to obtain such records. For any VA or other Federal department or agency records, the RO should continue its efforts to obtain any records while the case is under development on remand until it becomes reasonably certain that such records cannot be obtained because they do not exist or until it becomes reasonably certain that further efforts to obtain records from the such sources would be futile. 3. In addition, the RO should contact the appellant and inform her that may submit any other corroborating evidence she may have pertaining to alleged rape and sexual harassment incidents experienced during service. The RO should inform her that she may submit any other evidence to verify her alleged stressors from military as well as nonmilitary sources. The RO should assist the appellant in obtaining such evidence, as appropriate. In connection with this development, the RO should ensure that all appropriate special development procedures mandated by M21-1, Section 5.14 and 38 C.F.R. § 3.304(f)(3) for verification of a non-combat stressor is fully accomplished and documented in the claims folder, to include issuance of the special development letter to the appellant advising her of the steps necessary to verify her non-combat stressors. 4. Following the above, the RO must make a specific factual determination, based upon the complete record, with respect to whether one or more of the appellant's stressors occurred as she claims. In rendering this determination, the attention of the RO is directed to the law cited in the discussion above. If official service records or alternative records discussed in M21-1, Part III, Sec. 5.14 corroborate the appellant's allegations, the RO should specify that information. The RO should also indicate whether any behavioral changes that occurred at or close in time to the alleged incidents could possibly indicate the occurrence of a stressor and if so should decide whether this evidence needs interpretation by a clinician. 5. Upon completion of the above, the RO should schedule a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. A psychiatrist who has not previously examined, evaluated or treated the appellant, if feasible, should conduct this examination. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the true diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether the alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether there is a link between the current PTSD-symptomatology and the in-service stressor found to be established by the record and found sufficient to produce PTSD by the examiner. In addition, the examiner must comment on the approximate date of onset and etiology of any diagnosed psychiatric disorder as shown by the evidence of record, and in so doing, the examiner should attempt to reconcile the multiple psychiatric diagnoses and/or assessments of record based on his/her review of all of the evidence of record, particularly with respect to prior diagnoses of PTSD. Further, in line with the M21-1 provisions, the examiner is requested to provide detailed medical analysis and interpretation of the diagnoses found present on examination in light of all the evidence of record for the purpose of addressing whether any behavioral changes that occurred at or close in time to the alleged rape and sexual harassment incidents could possibly indicate the occurrence of an alleged in-service stressor. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. 6. The appellant must be given adequate notice of any requested examination, which includes advising her of the consequences of failure to report for a scheduled examination. If she fails to report for an examination, this fact should be documented in the claims folder. A copy of all notifications must be associated with the claims folder. 7. In addition, the RO should take all other proper measures to ensure full and complete compliance with the duty-to- notify and duty-to-assist provisions of the VCAA that are specifically germane to the claim on appeal, service connection for PTSD based on personal assault. This action should include notifying the appellant of her right to submit additional evidence or argument regarding the merits of this claim. 8. After completion of the above, the RO should readjudicate the issue of service connection for PTSD based on personal assault with consideration given to all of the evidence of record, including any additional medical evidence obtained by the RO pursuant to this REMAND. The readjudication of this claim must be on the merits and with full compliance with all relevant duty-to-notify and duty-to- assist provisions of the VCAA, as noted above. Further, the readjudication of this claim must be in accord with the revised 38 C.F.R. § 3.304(f), as amended in June 1999 and March 2002, which include the appropriate notice procedures set forth under the revised section § 3.304(f)(3) discussed above in this REMAND. The RO should also carefully consider the benefit of the doubt rule, and in this regard, if the evidence is not in equipoise the RO should explain why. Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991). If the benefit sought on appeal remains denied, the RO should provide the appellant and her representative an adequate supplemental statement of the case. The supplemental statement of the case must contain notice of all relevant actions taken on this claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. The SSOC should provide the veteran citation to 38 C.F.R. § 3.159. The RO should then allow the appellant an appropriate period of time for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. 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 2002) (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. _________________________________________________ MICHELLE L. KANE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2002).