Citation Nr: 0318116 Decision Date: 07/29/03 Archive Date: 08/05/03 DOCKET NO. 02-07 118 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Parakkal, Counsel INTRODUCTION The veteran served on active duty from March 1970 to March 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2001 RO decision that denied the veteran's claim of service connection for PTSD. In a February 2003 statement, the veteran's request for a hearing with a Decision Review Officer was withdrawn. Instead, he was afforded a hearing before an acting Veterans Law Judge (VLJ) from the Board sitting at the RO in January 2003. This VLJ will make the final determination in this case. See 38 U.S.C.A. §§ 7102(a), 7107(c) (West 2002). At his Board hearing, the veteran raised the issues of entitlement to service connection for right ear hearing loss and appeared to indicate that he wished to reopen a claim for entitlement to service connection for a head injury/seizure disorder. The Board finds that these claims are not properly before it at the present time and that these issues are not inextricably intertwined with the issue on appeal. Therefore, these matters are referred to the RO for the appropriate action. REMAND In November 2000, the President of the United States signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, 114 Stat. 2096 (2000). This act introduces several fundamental changes into the VA adjudication process. These changes were codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002) and 38 C.F.R. § 3.159 (2002). Under the VCAA, VA's duty to notify and assist has been significantly expanded. First, VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. 38 U.S.C.A. § 5102; 38 C.F.R. § 3.159(b)(2). Second, VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A; 38 C.F.R. § 3.159(c). There is a special obligation to assist claimants with the development of their personal-assault PTSD claims. Specifically, VA's Adjudication Procedure Manual M21-1 (Manual M21-1), Part III, 5.14(c) provides particularized requirements for the assistance that is to be given to veterans with PTSD claims based on assertions of personal assault. These particularized requirements regard the development of "alternative sources" of information since service records "may be devoid of evidence because many victims of personal assault . . . do not file official reports either with military or civilian authorities." MANUAL M21-1, Part III, 5.14(c)(5). Alternative source includes testimonial statements from confidants such as family members or clergy, as well as evidence of substance abuse and/or performance evaluations, among other things. In the instant case, the veteran claims that he was physically assaulted by a gunnery sergeant during boot camp. He should be afforded the opportunity to submit additional evidence that might corroborate his claim, including but not limited to statements from confidants such as family members, roommates, clergy, or fellow service members, or copies of personal diaries or journals. Manual M21-1, Part III, 5.14(c); see also Patton v. West, 12 Vet. App. 272 (1999). The claims file indicates that the veteran was awarded Social Security Administration (SSA) disability benefits in 1994. This SSA decision is of record. However, a review of the List of Exhibits for this decision appears to show SSA psychological evaluations that are not currently part of the VA claims file. The United States Court of Appeals for Veterans Claims has ruled on the importance of the VA to obtain copies of all relevant SSA records when adjudicating a claim for disability compensation. See Masor v. Derwinski, 2 Vet. App. 181 (1992). Therefore, the RO should obtain all medical evidence reviewed by the SSA in connection with the grant of benefits. The veteran should be afforded a VA psychiatric examination in order to determine whether he has PTSD and, if so, whether there is an etiological relationship between his current PTSD and all claimed stressors in service, to include, but not limited to, the alleged stressors involving the veteran's experiences in boot camp. Green v. Derwinski, 1 Vet. App. 121 (1991). Finally, any outstanding pertinent records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO should request the veteran to submit and/or identify any alternate available sources that may provide credible support regarding the alleged in-service assaults/traumatic events. He should be informed that this evidence can include testimonial statements from confidants such as family members or clergy, newspaper articles, medical records, substance abuse and/or performance evaluations, etc. The RO should then request any supporting evidence from alternative sources identified by the veteran and any additional alternative sources deemed appropriate, if the veteran has provided sufficiently detailed information to make such a request feasible. The RO should follow all applicable procedures in Manual M21-1, Part III, 5.14(c). 2. The RO should contact the veteran and request that he provide a complete name and address for the private facility ("North Unicrisis") that he identified at his Board hearing in January 2003. He should be asked to complete and return the appropriate release form so that these records can be obtained. If such a form is completed, the RO should request legible copies of these records. 3. The RO should contact the VA Medical Center in Walla Walla, Washington and the VA Outpatient Clinic in Richland, Washington, and request legible copies of all treatment records dated from January 1996 to the present time. 4. The RO should contact the appropriate office of the SSA and request legible copies of all medical information/records evaluated in connection with its award of disability benefits in March 1994, or thereafter. 5. The RO should contact the National Personnel Records Center and request that it provide the veteran's service personnel records. 6. The RO must then review the entire claims file, including the veteran's previous statements of stressors, and any additional information submitted by the veteran or otherwise obtained pursuant to this remand, and prepare a summary of all his claimed stressors. This summary should include the following stressors: a.) Being physically assaulted by a drill sergeant sometime in April 1970 during his basic training. The veteran has identified the drill sergeant in copies of his basic training class photographs. b.) Being thrown down a 30 foot concrete embankment by two sergeants while stationed in Okinawa, apparently on March 20, 1971. This summary and all associated documents (to include the service personnel records and copies of the photographs that the veteran submitted at his Board hearing in January 2003) should be sent to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), 7798 Cissna Road, Springfield, VA 22150. USASCRUR should be requested to provide any information that might corroborate the veteran's alleged stressors. Specifically, the USASCRUR should provide any information, if appropriate, on whether the sergeant identified in the basic training class photographs was subject to any disciplinary action by the military for abusing/assaulting recruits. 7. After the above development has been completed and all evidence received associated with the claims file, the RO should review all the evidence of record and make a written determination on whether the evidence of record has verified any alleged stressor. Such a determination must be incorporated into the claims file and be provided to the healthcare professional that conducts the examination requested in the next paragraph. 8. Thereafter, the veteran should be afforded a VA psychiatric examination. The purpose of this examination is to determine the existence and etiology any psychiatric disability to include PTSD. The claims folder and the RO's written determination on whether any alleged stressor has been verified by the evidence of record must be sent to the examiner for review. Please provide the examiner with the following instructions: The examiner is asked to indicate that he or she has reviewed the claims folder. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the examination report. The veteran has reported two stressors from his military service. These incidents are: 1) being physically assaulted by a drill sergeant sometime in April 1970 during his basic training; and 2) being thrown down a 30 foot concrete embankment by two sergeants while stationed in Okinawa, apparently on March 20, 1971. Initially, the examiner should review the contemporaneous evidence, to include service medical and personnel records, and determine if any of the veteran's noted behavior during the periods of the alleged assaults suggests that he had experienced a personal/physical assault. Then the examiner must determine whether the veteran has PTSD and, if so, whether any in-service stressor was sufficient to produce PTSD. The examiner is instructed to consider the incident in basic training or on Okinawa as a stressor only if any noted behavior changes in service suggest that such a stressor occurred; and/or, the examiner should only consider those stressors the RO has determined are verified by the record. The examiner should utilize the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) in arriving at diagnoses and identify all existing psychiatric diagnoses. If PTSD is diagnosed, the examiner must explain whether and how each of the diagnostic criteria is or is not satisfied. Also, if PTSD is diagnosed, the examiner must identify the stressor supporting the diagnosis. A complete rationale must be given for any opinion expressed and the foundation for all conclusions should be clearly set forth. The report of the psychiatric examination should be associated with the veteran's claims folder. 9. Review the claims file and ensure that no other notification or development action, in addition to those directed above, is required by the VCAA. If further action is required, undertake it before further adjudication of the claims. 10. Finally, readjudicate the veteran's claim for entitlement to service connection for PTSD, with application of all appropriate laws and regulations and consideration of any additional information obtained. If the decision with respect to this claim remains adverse to the veteran, he and his representative should be furnished an Supplemental Statement of the Case (SSOC) and afforded a reasonable period of time within which to respond thereto. The SSOC must include citation to 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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. _________________________________________________ M. L. WRIGHT 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).