Citation Nr: 0313385 Decision Date: 06/20/03 Archive Date: 06/24/03 DOCKET NO. 98-21 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for residuals of a sexual assault to include post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD M. Carr, Associate Counsel INTRODUCTION The veteran had active service from January 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The RO framed the issue as being service connection for sexual assault and remarked that it was unclear whether the veteran was filing a PTSD claim as a result of the alleged sexual assault, as he has not identified any disability resulting from the alleged assault. The Board, however, finds that the statement submitted by the veteran, and received concomitantly with his claim in April 1998, elucidates the intent of the veteran to seek service connection for PTSD based on the sexual assault. Therefore, the Board will henceforth treat the veteran's claim accordingly. REMAND The Board initially notes that during the course of the appeal, legislative changes have significantly altered VA's duty to assist, to include elimination of the requirement of submission of a "well-grounded" claim before the duty to assist attaches. See Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107). In this case, the appellant has yet to be informed of the recent legislative changes as set forth in the Veterans Claims Assistance Act, and the RO has yet to apply these changes to the appellant's claims of entitlement to service connection for post-traumatic stress disorder (PTSD) as a result of sexual abuse. Under the circumstances, the Board has determined that it cannot issue a decision on the appellant's claim without prejudicing his right to due process under law. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board therefore concludes that due process considerations mandate that the RO must consider the appellant's claim under the recent legislative changes contained in the Veterans Claims Assistance Act and insure compliance with that legislation with respect to both the duty to assist and the duty to notify. The veteran has asserted that he has PTSD due to being sexually assaulted by another soldier. He stated that he never reported this incident while in service. In fact, he indicated that he did not reveal this incident until 1998, at the VA Medical Center in Topeka. The Board notes that the decision by the United States Court of Appeals for Veterans Claims (Court) in Patton v. West, 12 Vet. App. 272 (1999), clearly alters the landscape in the adjudication of claims of service connection for PTSD based upon personal assault. In Patton, the Court emphasized that statements contained in prior decisions indicating that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'" of a claimed stressor 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," were made in the context of discussing PTSD diagnoses other than those arising from personal assault. Id. at 280; see also Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). With regard to personal assault cases, the Court pointed out that "VA has provided special evidentiary development procedures, including the interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis." Id. (citing VA Adjudication Procedure Manual M21-1 (M21-1), Part III, 5.14c (8), (9)). The Court has also held that these provisions of M21-1, which provide special evidentiary procedures for PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations. See YR v. West, 11 Vet. App. 393 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997). Specifically, M21-1, Part III, 5.14c subparagraph (8) (redesignated PartVI, paragraph 11.38b(2)), provides that "[i]f the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an in-service stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. Examples of behavior changes that might indicate a stressor are (but not limited to): visits to a medical or counseling clinic or dispensary without specific diagnosis or specific ailment; changes in performance and performance evaluations; increased disregard for military or civilian authority; increased interest in tests for Human Immunodeficiency Virus (HIV) or sexually transmitted diseases; and breakup of a primary relationship. Subparagraph (9) provides that "[r]ating boards may rely on the preponderance of evidence to support their conclusions even if the record does not contain direct contemporary evidence. In personal assault claims, secondary evidence which documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." The Court in Patton went on to note that the manual improperly appeared to require that the existence of the in- service stressor be shown by a preponderance of evidence. Any such requirement would be inconsistent with the so-called equipoise doctrine, where the benefit of the doubt is given to the claimant unless the evidence preponderates against the claim. Under the circumstances, the Board has determined that a remand is also required for the veteran to be given the opportunity to submit a full and detailed list of: 1) any evidence of behavioral changes which may support his claim; and 2) a list of fellow soldiers and/or civilians who may be able to provide lay statements as to either the occurrence of the claimed stressor, or changes in the veteran's observed behavior. The Board stresses that under M21-1, Part VI, 11.38b(2) the changes in the veteran's observed behavior must have been witnessed "at the time of the claimed stressors." Finally, the Board notes that although M21-1 provides that evidence of changes of behavior that occurred at the time of the incident may indicate the occurrence of an in-service stressor, such evidence may need interpretation by a clinician. See M21-1, Part VI, 11.38b(2). The Board further notes that the medical evidence in the veteran's claims folder contains numerous psychiatric diagnoses. Therefore, following the requested development, an opinion should be obtained from a VA psychiatrist, as outlined below. Therefore, the Board has determined that this case must be remanded in order for the RO to perform the following: 1. The RO should comply with the VCAA, to specifically notify the veteran of what evidence he may submit to support his claim and assisting him in attempting to obtain all relevant evidence. 2. The RO should ask the veteran to provide the names and addresses of all medical care providers, to include any VA treatment, who have provided treatment to him regarding his sexual assault. After securing any necessary releases, the RO should obtain these records. 3. The record indicates that the veteran receives Social Security benefits. The RO should obtain the veteran's records from the Social Security Administration. 4. The RO should obtain the veterans personnel records from the appropriate service department and associate them with the claims folder. 5. The RO should request that the veteran identify independently verifiable evidence of behavioral changes which occurred at the time of the alleged sexual assault, and to provide a list of any fellow soldiers and/or civilians, and their addresses, who may be able to provide lay statements as to the occurrence of the claimed stressor, and/or changes which they observed in his behavior at the time of the claimed stressor. 6. The RO should ensure that its efforts conform to all relevant provisions of Manual 21-1 regarding development in PTSD claims based on personal assault, to include undertaking all reasonable efforts to locate any witnesses identified, and, if located, to obtain statements from them regarding their knowledge of the veteran's alleged stressor. 7. The RO should schedule the veteran for a VA psychiatric examination to determine whether he has PTSD under the criteria as set forth in DSM-IV. If the veteran has PTSD, the examiner should report whether it is at least as likely as not that the veteran has PTSD as a result of a sexual assault during service. If the veteran's symptoms meet the DSM-IV criteria for a diagnosis of PTSD, the examiner must review the claims folder, to specifically include the service medical and personnel records and render an opinion as to whether there is evidence of changed behavior in service which would be consistent with the alleged sexual assault. The claims file should be provided to the examiner in connection with the examination. The examiner is to indicate on the examination report that he or she reviewed the veteran's claims file prior to this examination. 8. Thereafter, the RO should readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 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. _________________________________________________ C.W. SYMANSKI 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).