Citation Nr: 0318972 Decision Date: 08/05/03 Archive Date: 08/13/03 DOCKET NO. 00-03 430 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a psychiatric disorder claimed as depression. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The veteran served on active duty from September 1987 to September 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (Louisville RO). Subsequently, the veteran's claims folder was transferred to the VA Regional Office (RO) in Nashville, Tennessee. The veteran testified at an RO hearing in October 2000. In August 2002, the Board determined that new and material evidence had been received and reopened the veteran's claim for service connection for depression and undertook additional development with respect to the veteran's reopened claim for service connection for depression pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (codified at 38 C.F.R. § 19.9(a)(2) (2002)). As the appellant neither submitted good cause for failure to appear or requested to reschedule an April 2002 Travel Board hearing, the request for a hearing was deemed withdrawn. See 38 C.F.R. § 20.704(d) (2002). REMAND In her December 1999 notice of disagreement, the veteran claimed for the first time that she had been raped while serving in the Air Force. Based on her contention that her depression was secondary to a personal assault, in May 2000, the RO sent a questionnaire asking the veteran to provide information in support of a claim for service connection for post-traumatic stress disorder (PTSD) secondary to personal assault. Later that month, the veteran submitted a partially completed questionnaire, indicating that the incident occurred in December 1990 while she was stationed in Korea. (Service medical records show that she received treatment for a vaginal infection in December 1989, while stationed in Korea.) At her RO hearing, the veteran testified that she was sexually assaulted by an officer and one of his friends while stationed at Langley Air Force Base, in January 1991, but indicated that she had not reported it at that time because of possible repercussions to their military careers. The veteran also stated that she had reported being raped while in the service during treatment at the Louisville VA Medical Center in 1996 and was diagnosed as manic depressive due to the incident. The veteran's last performance evaluation for the period from March 3, 1990 through May 19, 1991 noted that the veteran had failed to meet the minimum standards, which considered dress and appearance, weight and fitness, customs, and courtesies. As noted above, in an August 2002 decision, the Board concluded that the veteran's sexual assault contentions, stressor information, and her testimony, along with her last performance evaluation showing her failure to meet the minimum standards and newly associated VA treatment records, constituted new and material evidence and reopened her service-connection claim. New and material evidence having been submitted to reopen a claim for service connection for a psychiatric disorder claimed as depression, the claim is REMANDED for de novo review. During the pendency of this appeal, on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002). In substance, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his or her claim for benefits under the laws administered by VA. In pertinent part, this law redefines the obligations of VA with respect to the duty to assist. The provisions of the VCAA apply to all claims for VA benefits. VA issued regulations to implement the VCAA in August 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The amendments became effective on November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a), which became effective August 29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of this rule merely implement the VCAA, and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly, where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions are likewise satisfied. Pursuant to the VCAA, VA first has a duty to notify the appellant and her representative of any information and evidence necessary to substantiate her claim for VA benefits. See generally 38 U.S.C.A. §§ 5102, 5103 (West 2002); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159(b)). Further, the VA has a duty to assist the appellant in obtaining evidence necessary to substantiate her claim, although the ultimate responsibility for furnishing evidence rests with the appellant. See 38 U.S.C.A. § 5103A (West 2002); 66 Fed. Reg. 46,620, 45,630 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159(c)). In the present case, the Board finds that VA's redefined duties to notify and assist a claimant, as set forth in the VCAA, have not been fulfilled regarding the issue addressed in this remand. See Disabled American Veterans v. Sec'y of Veterans Affairs, Nos. 02-7304, -7305, - 7316, 2003 U.S. App. LEXIS 8275 (Fed. Cir. May 1, 2003). The Board also notes that VA has changed the criteria set forth in 38 C.F.R. § 3.404(f) pertaining to service connection for PTSD twice during the pendency of this appeal. The first amendments became effective on June 18, 1999. See Direct Service Connection (Post-Traumatic Stress Disorder), 64 Fed. Reg. 32,808 (June 18, 1999). The second amendments became effective March 7, 2002. See Post-Traumatic Stress Disorder Claims Based on Personal Assault, 67 Fed. Reg. 10,330, 10,332 (Mar. 7, 2002) (codified as amended at 38 C.F.R. § 3.304(f) (2002)). The 1998 and 1999 criteria for evaluating PTSD claims are substantially the same, as both versions of the regulations require medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (1998), (2002). The 1999 amendments primarily codified the decision of the United States Court of Appeals for Veterans Claims (Court) in Cohen v. Brown, 10 Vet. App. 128 (1997), and brought 38 C.F.R. § 3.304(f) in line with the governing statute, 38 U.S.C.A. § 1154(b) (West 1991), which relaxed certain evidentiary requirements for PTSD claimants who have combat-related stressors. The Board notes that the 2002 amendments codified manual procedures pertaining to PTSD claims resulting from personal assault. 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 most favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). The Board finds that, as the revised version of 38 U.S.C.A. § 5107 in the VCAA eliminates the "well-grounded claim" requirement of 38 U.S.C.A. § 5107 (West 1991) and the 1998 and 1999 criteria for evaluating PTSD claims are substantially the same or codify the pre-existing manual procedures for personal assault claims, they are, therefore, applicable law under the holding in Karnas, supra. 38 U.S.C.A. § 5107 (West 2002). For the below described reasons, the case is remanded to the RO for additional development. With regard to PTSD, VA regulations reflect that symptoms attributable to PTSD are often not manifest in service. Accordingly, service connection for PTSD requires a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor), credible supporting evidence that the claimed in-service stressor(s) actually occurred, and medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f) (2002); 67 Fed. Reg. 10,330, 10,332 (Mar. 7, 2002) (codified as amended at 38 C.F.R. § 3.304(f)); see also Cohen, 10 Vet. App. at 138 (citing Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996)). With regard to the claimed stressor involving allegations of personal assault, VA recognizes that veterans claiming service connection for disability due to an in-service personal assault face unique problems documenting their claims. Personal assault is an event of human design that threatens or inflicts harm. Although these incidents are most often thought of as involving female veterans, male veterans may also be involved. These incidents are often violent and may lead to the development of PTSD secondary to personal assault. VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14 (April 30, 1999) (hereinafter M21-1). Because assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. Therefore, alternative evidence must be sought. The M21-1 includes a sample letter to be sent to the veteran, asking her to provide detail as to any treatment she had received, any family or friends she had communicated with concerning this claimed personal assault, and any law enforcement or medical records pertaining to the alleged assault. M21-1, Part III, 5.14 (April 30, 1999). In particular, the Board observes that the Court held in Patton v. West, 12 Vet. App. 272 (1999), that the provisions in M21- 1, Part III, 5.14(c), which address PTSD claims based on personal assault are substantive rules which are the equivalent of VA regulations and must be considered. See also YR v. West, 11 Vet. App. 393, 398-99 (1998) (5.14 is a substantive rule and the equivalent of a VA regulation). With respect to claims involving personal assault, all available evidence must be carefully evaluated. If the military records do not document 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. See M21-1, Part III, 5.14(8). The Board notes that the claims file fails to reflect that the appellant has been provided with specific information concerning what additional information she needs to submit to establish service connection and what information VA will attempt to obtain as required by the VCAA. As such, the RO must provide the appellant with such information, as required by law. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.102, 3.156(a), 3.159 and 3.326(a)). The Board further notes that the duty to assist includes obtaining additional treatment records, service personnel records, and providing a VA medical examination or a medical opinion when necessary for an adequate determination. The Board observes that, at her October 2000 RO hearing, the veteran gave the name of one of the service personnel stationed at Langley Air Force Base (AFB), Virginia, who alleged sexually assaulted her on her birthday in January 1991. She also testified that she had been treated at the Jackson Regional Hospital in Jackson, Tennessee and at another private hospital, St. Thomas Hospital, in 1997 or 1998, and that she was currently being treated by VA. Pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (codified at 38 C.F.R. § 19.9(a)(2)), in a November 2003 letter, the Board informed the veteran that evidence from sources other than her service medical records may corroborate her account of a personal assault and asked the veteran to give a comprehensive statement regarding her alleged stressor incidents, to complete an in-service personal assault questionnaire and to identify health care providers who treated her for a psychiatric disorder. No response was received. The duty to assist includes obtaining pertinent non-VA and VA treatment records. Because the veteran did not engage in combat with the enemy, her lay testimony alone is not enough to establish the occurrence of the alleged stressor of personal assault. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Board feels that another attempt should be made by the RO to ask the veteran to identify and sign releases for health care providers that treated her for any psychiatric disorder, to include substance abuse, since September 1991 and should obtain missing non-VA and VA treatment records, in particular ones from the Jackson General and St. Thomas Hospitals, to provide a comprehensive statement regarding her alleged stressor incidents, and to complete an in-service personal assault questionnaire. The Board reminds the veteran that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). In addition, the RO should obtain copies of DA Form 20 for a serviceman named Mark Johnson, who was stationed at Langley AFB in January 1991. Finally, since the record shows multiple psychiatric diagnoses, including depression, substance abuse mood disorder, and bipolar disorder, the veteran will be afforded a VA psychiatric examination to provide an opinion as to whether any psychiatric disorder found on examination may be related to service, to include due to sexual assault. It would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time without compliance with the notice and duty to assist provisions of the VCAA or consideration of the revised PTSD regulations for personal assault. See Bernard v. Brown, 4 Vet. App. 384 (1993). Therefore, for these reasons, a remand is required. Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following actions: 1. The RO should ask the veteran to identify all VA and non-VA health care providers that have treated her for a psychiatric disorder, to include depression, from September 1991 to the present. The RO should obtain records from each health care provider she identifies, if not already in the claims file. In particular, the RO should obtain missing records from St. Thomas Hospital for treatment during 1997 and 1998 and from Jackson General Hospital, in Jackson, Tennessee, and from the VA Medical Centers and outpatient clinics in Louisville, Kentucky and Memphis, Tennessee since September 1991 to the present. If records are unavailable, please have the provider so indicate. 2. The RO should inform the veteran that evidence from sources other than her service medical records may corroborate her account of a personal assault, and ask the veteran to give a comprehensive statement regarding her alleged stressor incident(s) and to complete an in-service personal assault questionnaire. The veteran should be asked to comment specifically about sexual assaults claimed while serving in Korea (1989- 1990) and at Langley Air Force Base (1991). 3. The RO should obtain and associate with the claims file copies of DA Form 20 for a serviceman named Mark Johnson, who was stationed at Langley AFB, Virginia, in January 1991. If records for the named serviceman are not found, the RO should document the record and explain what actions it took and the results of its efforts. 4. After completion of 1 through 3 above, the RO should make arrangements with the appropriate VA medical facility for the veteran to be afforded a psychiatric examination to determine whether any psychiatric disorder or disorders are present, and, if so, the correct diagnostic classification and etiology of any disorder found. The claims file and a copy of this remand must be made available to, and be reviewed by, the examiner in connection with the examination. All special studies or tests including psychological testing and evaluations, such as the Minnesota Multiphasic Psychological Inventory, deemed necessary by the examiner are to be accomplished. The examination report should include a detailed account of all pathology found to be present. The examiner should provide explicit responses to the following questions: (a) Does the veteran have a psychiatric disability? (b) If there is a psychiatric disorder(s), the examiner should determine the etiology and the nature and extent of such disorder(s). For each identified disorder, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or more probability) that such disorder began during, or was aggravated (worsened), as the result of some incident of active service, to include as a result of a personal assault. (c) If a diagnosis of PTSD is appropriate, the examiner should specify the credible "stressor(s)" that caused the disorder and the evidence upon which that opinion was based to establish the existence of the stressor(s). The examiner should comment explicitly upon whether the veteran's alleged stressor was as a result of a personal assault while in the military. If so, the examiner should also comment explicitly upon whether there is a link between such a stressor and the current symptoms, if any. The rationale for any opinion and all clinical findings should be reported in detail. 5. The RO must review the entire file and ensure for the issue on appeal that all notification and development necessary to comply with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159 (Duty to Assist, 66 Fed. Reg. 45,620 (Aug. 29, 2001)) is fully complied with and satisfied. The claims file must include documentation that the RO has complied with the VA's redefined duties to notify and assist a claimant, as set forth in the VCAA. 6. After completion of the above, the RO should readjudicate the appellant's claim, considering any additional evidence obtained by the RO on remand. If the determination remains unfavorable to the appellant, she and her representative should be provided with a supplemental statement of the case and be afforded an opportunity to respond before the case is returned to the Board for further review. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. The purposes of this remand are to further develop the appellant's claim and to ensure due process. No action by the appellant is required until she receives further notice; however, the veteran is advised that failure to cooperate by reporting for examination may result in the denial of the claim. 38 C.F.R. § 3.655 (2002). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The appellant and her representative have the right to submit additional evidence and argument on the current appeal. 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. _________________________________________________ A. BRYANT 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).