Citation Nr: 0309188 Decision Date: 05/16/03 Archive Date: 05/27/03 DOCKET NO. 02-13 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD) ATTORNEY FOR THE BOARD B. P. Tierney, Counsel INTRODUCTION The veteran served on active duty from May 1976 to May 1980. This appeal arises from an adverse decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, dated in October 2001, which denied the veteran's claim of entitlement to service connection for PTSD. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. During the course of the Board's review of this claim the Court of Appeals for the Federal Circuit (Federal Circuit) held that 38 C.F.R. § 19.9(a)(2), in the manner that it operates in tandem with 38 C.F.R. § 20.1304 (allowing the Board to consider additional evidence without having to remand the case to the AOJ for initial consideration and without having to obtain the appellant's waiver) is contrary to the requirement in 38 U.S.C. § 7104(a) that "[a]ll questions in a matter which...is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary." Moreover, the Federal Circuit held that 38 C.F.R. § 19.9(a)(2)(ii), which required the Board "to provide the notice required by 38 U.S.C. § 5103(a)" and "not less than 30 days to respond to the notice," is invalid because it is contrary to 38 U.S.C. § 5103(b), which provides the claimant one year to submit evidence. Disabled American Veterans, et al. v. Secretary of Veterans Affairs, Nos. 02-7304, --7305, -7316 (Fed. Cir. May 1, 2002). In view of this recent Federal Circuit case, and because this appeal requires additional development as outlined below, this case must be remanded to the RO. REMAND Review of the record reveals that the veteran alleges her current PTSD is the result of a stressor that occurred during her period of active duty from May 1976 to May 1980. She alleges that she was sexually assaulted by a female friend. Review of the private medical evidence reveals that she reported the incident to a therapist in January or February 1985. In a statement dated in June 2000, the veteran alleged that an incident occurred in her room during late 1978 or 1979. In February 2001, the veteran named her assailant. Records, submitted from several private mental health providers, have noted current diagnoses of PTSD. The veteran has not been afforded a VA examination in connection with her claim. The Court of Appeals for Veterans' Claims (Court) has stressed the necessity of complete development of the evidence if a PTSD claim is based on an alleged personal assault. See Patton v. West, 12 Vet. App. 272, 276 (1999). In Patton, the Court pointed out that there are special evidentiary development procedures for PTSD claims based on personal assault contained in VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c) (Feb. 20, 1996), and former MANUAL M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995). The general M21-1 provisions on PTSD claims in 5.14 require that in cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence. MANUAL M21-1, Part III, 5.14(b)(2). As to personal-assault PTSD claims, more particularized requirements are established regarding the development of "alternative sources" of information as service records may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. MANUAL M21-1, Part III, 5.14(c). Further, the provisions of subparagraphs (7) and (8) indicate that "[b]ehavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor", and that "secondary evidence may need interpretation by a clinician, especially if it involves behavior changes" and that "[e]vidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." When read together, the Court states that the subparagraphs show that in personal-assault cases the Secretary has undertaken a special obligation to assist a claimant in producing corroborating evidence of an in-service stressor. Also in Patton, the Court qualified prior statements contained in other Court decisions indicating that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'," and that "[a]n opinion by a mental health professional based on a post-service examination of the veteran cannot be used to establish the occurrence of the stressor." The Court stated that these quoted categorical statements were made in the context of discussing PTSD diagnoses other than those arising from personal assault. Moreau v. Brown, 9 Vet. App. 389 (1996). To that extent, the Court found that the above categorical statements in Moreau, and other cases where that may have been in accordance, are not operative. In addition, the Court noted that in two places MANUAL M21-1, Part III, 5.14, appeared improperly to require that the existence of an in-service stressor be shown by "the preponderance of the evidence." The Court clearly stated that any such requirement would be inconsistent with the benefit of the doubt doctrine which is applicable where the evidence is in equipoise. Patton, 12 Vet. App. at 280. As noted above, in a post-traumatic stress disorder claim based on in-service personal assault such as here, 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 post-traumatic stress disorder 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. 38 C.F.R. §§ 3.304(f) (2002) The Board finds that the requirements of 38 C.F.R. § 3.159 regarding the duty to assist and the requirements of 38 C.F.R. § 3.304(f) have not been met. All available government sources have not been checked in an attempt to verify the veteran's claimed stressor. Further, VA must either furnish the evidence of the stressor to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred or explain why it does not need to do so. Accordingly, this case is REMANDED for the following: 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran for PTSD. After securing the necessary release, the RO should obtain these records. 2. Contact the veteran and asked her to provide information regarding the following: (1) the full name and rank of the individual who sexually assaulted her during her service (identified on a 2/20/01 report of contact), (2) the name and addresses of any witnesses to the assault, the names and addresses of any individuals told of the assault during her service; (3) the name of any family member or friend she told of the sexual assault or sexual harassment during her active service; (4) or any letters or other documents that the veteran either wrote during her active service that cite the alleged stressful events during her active service. 3. If the veteran provides information regarding the name and rank of the individual who sexually assaulted her, contact the National Personnel Records Center (NPRC) to verify that the individual served with the veteran. 4. The RO should submit all evidence relevant to the occurrence of the veteran's claimed stressors to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. This submission may be made in conjunction with the examination mandated in paragraph 5. 5. The veteran should be afforded a VA psychiatric examination to determine the status and appropriate diagnosis of the veteran's current psychiatric disorder(s). Any indicated tests should be performed, and all manifestations of current disability should be described in detail. Any diagnosis should conform to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). A diagnosis of PTSD should be confirmed or ruled out. If the veteran is found to have PTSD, the examiner is requested to identify the diagnostic criteria, including the specific stressor or stressors, supporting the diagnosis. A complete rationale should be given for all opinions and conclusions expressed. The claims folder must be made available to the examiner for review before the examination. 6. Thereafter, 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 appellant has the right to submit additional evidence and argument on the matter 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 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. _________________________________________________ R. F. WILLIAMS 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).