Citation Nr: 0328134 Decision Date: 10/20/03 Archive Date: 10/28/03 DOCKET NO. 02-11 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a psychiatric disorder due to personal assault, characterized as post- traumatic stress disorder (PTSD) and depression. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for residuals of gunshot wound, right thigh. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The veteran had active military service from July 1967 to June 1970. This matter came before the Board of Veterans' Appeals (Board) from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The veteran has appealed to the Board. An issue of entitlement to service connection for the residuals of an injury to a "trigger" finger of the right hand was considered in the rating action on appeal. It was the subject of a notice of disagreement, was not in the initial statement of the case, was in a supplemental statement of the case, but no substantive appeal as to that issue is on file. The representative has provided no specific argument on the issue and it is not certified to the Board. Therefore, consideration is limited to the issues on the title page. REMAND The veteran contends, at least in part, that he developed PTSD as a result of personal assaults while in service. The medical evidence contains diagnoses of PTSD and depression. Specifically, the evidence includes service medical records which show psychiatric evaluation and complaints of harassment in service. Post service records from the Augusta VA Medical Center dated from 2000 to 2002 show treatment for PTSD due to sexual assault in service (per January 2001 evaluation from a VA psychologist), with the remaining medical records reflecting continuous treatment for psychiatric symptomatology. The January 2001 diagnosis appears to be based on in-service stressors reported by the veteran at the time of the examination. 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) (2002); Cohen v. Brown, 10 Vet. App. 128, 139-143 (1997). In essence, the disputed matter concerning service connection for PTSD relates to the sufficiency of the evidence corroborating the occurrence of an adequate "stressor" during the veteran's service. 38 C.F.R. § 3.304(f) (2002). While a diagnosis of PTSD has been recorded, the record still contains inadequate information pertaining to the documentation of events constituting a stressor for PTSD. When 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) (2002). 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: 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 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 that 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) (2002). 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. Additionally, it appears that prior to service the veteran was treated for psychiatric symptomatology from age 7 to 14 at the Bellevue Psychiatric Unit and the Rockland State Hospital (per service medical records). These records should be obtained and incorporated into the claims file as well. Thereafter, a review of the clinical diagnosis of PTSD should be undertaken in light of the difficulties encountered in confirming a stressor. The diagnostic conclusions of record were based on information received from the veteran himself concerning experiences during military service. The VA is not obligated to accept diagnoses based on uncorroborated information. Wilson v. Derwinski, 2 Vet.App. 614 (1992) and Wood v. Derwinski, 1 Vet.App. 190 (1991). Consequently the Board finds that, following completion of the additional development requested herein, if the RO finds that there is credible supporting evidence that a claimed in-service stressor actually occurred, the complete record should again be reviewed by a psychiatrist. If PTSD is found, the manifestations thereof should be described in detail and the stressor(s) should be identified. With regard to the remaining issues of hypertension, tinnitus, hearing loss, and right thigh gunshot wound residuals, a review of the record reveals that the veteran was scheduled for VA compensation and pension examinations, but did not report for the examinations. The claims folder does not clearly reflect evidence showing that the veteran was ever notified that he was scheduled for the examinations. Additionally, while the case is in remand status, the RO should provide appropriate notice under the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the veteran should be informed as to what evidence the VA would obtain, and what evidence he would be responsible for obtaining. See 38 U.S.C.A. § 5100 et. seq. (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Final adjudication by the Board cannot be undertaken without this notice. See Quartuccio. Furthermore, it is noted that many notice letters are essentially invalid in view of a recent Federal Court decision. Paralyzed Veterans of America, et al., v. Secretary of Veterans Affairs, Nos. 02-7007, -7008, -7009, 7010 (Fed. Cir. Sept. 22, 2003). Notice should be given with this holding in mind. Therefore, in order to give the veteran every consideration with respect to the present appeal and to accord the veteran due process of law, the Board finds that further development with respect to the issue on appeal in this case is warranted. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should furnish the veteran a letter notifying him of the VCAA and the duties to notify and assist imposed thereby, specifically as regards each claim currently on appeal. The letter should include specific notice as to the type of evidence necessary to substantiate each claim. The notice should be given in accordance with the Court cases noted above, and other applicable legal criteria. 2. The RO must ask the veteran to identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers, that have treated him for psychiatric symptoms, hypertension, tinnitus, hearing loss, and right thigh gunshot wound residuals since service discharge in 1970. To the extent the veteran names non-VA providers, seek release forms. To the extent he lists VA treatment obtain those records. Specifically, the RO should obtain all outstanding pertinent medical records, to include (but not limited to) hospital records from Bellevue Psychiatric Unit and Rockland State Hospital pertaining to the veteran's period of hospitalization from age 7 to 14. All such evidence should be associated with the claims file. The request for health care records should also include a request for all post- service records of the veteran since 1970 that may be available. The veteran's assistance should be requested as needed in obtaining these records. Complete copies of all records should be associated with the claims folder. 3. The RO should provide the veteran with a personal assault letter and questionnaire to be filled out and returned, in accordance with M21-1, in order to obtain as much information as possible about the personal assault incident(s) in service, to include a detailed description of the pertinent incident(s), with all pertinent dates and locations, as well as the complete names and unit designations of the assailants and others who may have knowledge of the incident(s). 4. The RO should afford the veteran the opportunity to submit any additional evidence in support of his claim for service connection for PTSD, to include statements from relatives. He should be asked to provide any additional information possible regarding the stressful events claimed to have caused PTSD and to identify potential alternative sources for supporting evidence regarding the stressors he alleges occurred in service. In particular, the veteran should provide as much detailed information as possible including the dates, places, names of people present, and detailed descriptions of events. The veteran is advised that this information is necessary to obtain supportive evidence of the stressful events and that he must be as specific as possible because without such details an adequate search for verifying information cannot be conducted. The RO should then request any supporting evidence from alternative sources identified by the veteran and any additional alternative sources deemed appropriate, including military police records, if the veteran has provided sufficiently detailed information to make such request feasible. 5. If the RO determines that there is evidence of behavior changes at the time of an alleged stressor, which might indicate the occurrence of an in-service stressor, or if otherwise deemed necessary, the RO should obtain interpretation of such evidence by a clinician as provided in M21-1, Part III, 5.14(c)(9) in latest form. 6. The RO should then review the file and make a specific written determination, in accordance with the provisions of 38 C.F.R. § 3.304(f) and M21-1, Part III, 5.14(c), with respect to whether the veteran was exposed to a stressor, or stressors, in service, and, if so, the nature of the specific stressor or stressors established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 7. The veteran should be referred for a VA psychiatric examination to ascertain the nature of all current psychiatric pathology. All indicated tests and studies should be conducted and all findings should be reported in detail. The examiner should review all pertinent medical records in the claims file and a copy of this REMAND, and should state in the examination report that such review was performed. All diagnoses on Axis I though V should be reported, if found. Upon examination of the veteran, the examiner should report whether a diagnosis of PTSD based on a finding of a credible/verified stressor can be made, under the criteria of the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) of the American Psychiatric Association, and whether it is at least as likely as not that any current diagnosis of PTSD is related to that credible/verified stressor. As well, the examiner should render an opinion as to whether it is at least as likely as not that any current psychiatric disorder (other than PTSD) was incurred in or aggravated during service, became manifest within a year of discharge from service, or is otherwise related to service. Furthermore, the examiner should make a finding as to the extent, if any, of social and industrial impairment currently attributable to the veteran's overall psychiatric disability, if any. It is requested that the examiner reconcile any contradictory evidence regarding the etiology of the veteran's psychiatric disorder. All pertinent clinical findings and the complete rationale for all opinions expressed should be set forth in a written report. The claims folder must be provided to and reviewed by the examiner as part of the examination. 8. Make arrangements with the appropriate VA medical facility for the veteran to be afforded examinations to determine the exact nature and etiology of any current hypertension, tinnitus, hearing loss, and right thigh gunshot wound residuals, and the extent, if any, to which any pathology now present is related to service. Each examiner should elicit from the veteran a detailed history regarding the onset and progression of relevant symptoms. The examinations should include any diagnostic testing that is deemed necessary for an accurate assessment and the examiners should review the results of any testing prior to completing the report. Complete diagnoses should be provided. On the basis of the current examination findings and information in the claims file, the examiner should render an opinion as to whether it is at least as likely as not that hypertension, tinnitus, hearing loss, and right thigh gunshot wound residuals are attributable to any disease or injury suffered during his service, intercurrent causes, or to a combination of such causes or to some other cause or causes. If the veteran does not currently have hypertension, tinnitus, hearing loss, and right thigh gunshot wound residuals, which could be regarded as having been incurred in or aggravated while the veteran was in service, the examiners must specifically indicate so. The examiners must set forth the complete rationale underlying any conclusions drawn or opinions expressed (to include discussion of specific evidence of record, such as the service medical records). The veteran's claims folder must be made available to the examiners for review in conjunction with the examinations. If this matter can not be decided as to any issue without resort to speculation, that should be included in the examination report. 9. The RO should then review the claims file and ensure that all notification and development action required by VCCA is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in 38 U.S.C. §§ 5102, 5103, 5103A, and 5107 are fully complied with and satisfied. 10. After completion of the above requested development, and any other development deemed warranted by the record, the RO should adjudicate each claim on appeal in light of all pertinent evidence and legal authority as appropriate. 11. If any benefit sought on appeal remains denied, the RO must furnish the veteran and his representative an appropriate supplemental statement of the case and allow them a reasonable period of time to respond. The veteran 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. 8.43 and 38.02. _________________________________________________ MICHAEL D. LYON 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).