Citation Nr: 0327251 Decision Date: 10/10/03 Archive Date: 10/20/03 DOCKET NO. 02-04 932A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from October 1988 to April 1991. Her appeal comes before the Board of Veterans' Appeals (Board) from a February 2002 rating decision by the Department of Veterans Affairs (VA) Cleveland, Ohio, Regional Office (RO). REMAND On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. § 3.159(b) (2003); see Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2003). In this case, the Board finds that, because of the changes in the law pursuant to the VCAA, a remand in this case is required for compliance with the new notice and duty to assist requirements. In addition, as further discussed below, the Board finds that the RO has failed to fully developed the claim on appeal, and that appellate adjudication at this time would be potentially prejudicial to the appellant. As such, a remand of the appellant's case is in order. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). Accordingly, the Board finds that VA has not satisfied its duty under the VCAA to notify and assist the appellant with regards to her claim for service connection for PTSD. In a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02- 7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), the United States Court of Appeals for the Federal Circuit (Fed. Circuit) invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Fed. Circuit made a conclusion similar to the one reached in Disabled Am. Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The court found that the 30-day period provided in § 3.159(b)(1) to respond to a VCCA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. Therefore, since this case is being remanded for additional development or to cure a procedural defect, the RO must take this opportunity to inform the appellant that notwithstanding the information previously provided, a full year is allowed to respond to a VCAA notice. The appellant contends that she was sexually assaulted in service, and that, as a result, she currently suffers from PTSD. The medical evidence of record shows that she is currently diagnosed with PTSD. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2003); Cohen v. Brown, 10 Vet. App. 128, 139-143 (1997). If PTSD is based on in-service personal assault, evidence from sources other than the veteran's 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. 38 C.F.R. § 3.304(f)(3) (2003). Additionally, evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in the mentioned sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to the following: 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. Id. Furthermore, pertinent provisions of VA Manual M21-1 specifically address the types of documentation that may be used to corroborate the occurrence of a stressor where the alleged stressor event is physical or sexual assault. See Cohen, 10 Vet. App. at 128; M21-1, Part III, Change 49 (February 1996), par. 5.14c; see also YR v. West, 11 Vet. App. 393, 399 (1998). The law is clear that VA will not deny a PTSD 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/her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. As well, 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)(3). In this case, however, the RO has failed to comply with the above described notification requirements in section 3.304(f)(3), and thus, the case must be remanded to the RO for such development. In her various statements and testimony, the appellant has referenced treatment at a military hospital following the alleged assault and a subsequent Criminal Investigation Division (CID) investigation, treatment for her PTSD at the Brecksville, Ohio, VA Medical Center, and a worker's compensation claim filed in 1999. However, these records have not been obtained. If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, in order to accord the appellant every consideration with respect to the present appeal, and to ensure that the appellant is provided with due process of the law, the case is remanded to the RO for the following development: 1. The RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A, (West 2002), and any other applicable legal precedent. Particularly, the RO must notify the appellant of the applicable provisions of the VCAA, including what evidence is needed to support her claim, what evidence VA will develop, and what evidence the appellant must furnish. 2. The RO should request the official service records pertaining to the CID investigation of the appellant's sexual assault on or about May 1989. The request should be made as to both the appellant's current surname and her maiden name. All records obtained should be associated with the claims file. 3. The RO should contact the medical facility at Ft. Lewis, Washington, and request copies of all records pertaining to treatment for the appellant's alleged sexual assault in 1989. The request should be made as to both the appellant's current surname and her maiden name. All records obtained should be associated with the claims file. 4. The RO should contact the department that handles worker's compensation claims for the State of Ohio and request all records pertaining to the appellant's 1999 claim. All records obtained should be associated with the claims file. 5. The RO should obtain the appellant's medical records from the Brecksville, Ohio, VA Medical Center. All records received should be associate with the claims file. 6. The RO should send the appellant an appropriate stressor development letter. The appellant should be notified that in- service personal assault may be corroborated by evidence from sources other than the service records, as defined in 38 C.F.R. § 3.304(f)(3). All specific examples of alternative sources of evidence listed in section 3.304(f)(3) must be included in the notification to the appellant. An appropriate period of time should be allowed for the appellant to respond and/or submit additional evidence. 7. Upon receipt of the appellant's response to the above requested development, the RO should undertake any and all further development action indicated by the evidence of record concerning the appellant's claim for service connection for PTSD due to sexual assault. The RO should then make a determination as to whether there is any credible supporting evidence that the appellant was sexually assaulted during active service. A statement of the RO's determination should be placed into the claims file. 8. 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. The claims file must be made available to and reviewed by the examiner prior to the requested study. All indicated tests, including appropriate psychological studies with applicable subscales, must be conducted. The examiner must assign a Global Assessment of Functioning Score (GAF) consistent with the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed., 1994), and explain what the assigned score represents. 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. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether it is at least as likely as not that there is a link between the current symptomatology and one or more of the in-service stressors 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. 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 stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors. The examiner should make a finding as to the extent of social and industrial impairment currently attributable to the appellant's overall psychiatric disability. The examiner should be requested to present all opinions and findings, and the reasons and bases therefore, in a clear, comprehensive, and legible manner on the examination report, while reconciling any contradictory evidence regarding the etiology of the veteran's psychiatric disorder. After completion of the above, the RO should readjudicate the issue of service connection for PTSD 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 in accord with the revised version of 38 C.F.R. § 3.304(f), as amended in June 1999, 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 RO should provide the appellant and her representative a supplemental statement of the case, which must contain notice of all relevant actions taken on her claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. The RO should then allow the appellant and her representative an appropriate period of time to respond. The appellant need take no action until notified, and she 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. _________________________________________________ THOMAS J. DANNAHER 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) (2003).