Citation Nr: 0329599 Decision Date: 10/29/03 Archive Date: 11/05/03 DOCKET NO. 00-02 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Glenn R. Bergmann, attorney at law WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD L. Cramp, Associate Counsel INTRODUCTION This case comes before the Board of Veterans Appeals (the Board) on appeal from a May 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The veteran subsequently relocated to Missouri, and the RO in St. Louis, Missouri currently has original jurisdiction. Procedural history The veteran served on active duty from September 1964 to July 1965. The RO received the veteran's claim of entitlement to service connection for PTSD in September 1996. In March 1997 and May 1998 rating decisions, the RO denied the veteran's claim. The veteran disagreed with the May 1998 rating decision and initiated this appeal. The appeal was perfected with the timely submission of the veteran's substantive appeal (VA Form 9) in January 2000. In a September 2002 decision, the Board denied the veteran's claim of entitlement to service connection for PTSD. Thereafter, the veteran filed an appeal to the United States Court of Appeals for Veterans Claims (the Court). While the case was pending at the Court, the VA Office of General Counsel and the veteran's attorney filed a joint motion for remand, requesting that the Court vacate the Board's decision and remand the case to the Board. In an Order dated April 2003, the Court granted the joint motion, vacated the Board's September 2002 decision, and remanded the case to the Board for readjudication consistent with the joint motion. REMAND The veteran seeks service connection for PTSD. She essentially contends that she was sexually assaulted by a sergeant while in training at Ft. Gordon, Georgia, and that she now suffers from PTSD as a result. Factual background The Court remanded the case to ensure compliance with provisions of VA Manual 21-1 (M21-1) dealing with PTSD based on personal assault. The Court has previously found that those provisions are substantive rules that are the equivalent of VA regulations, and has mandated that VA follow them. See Patton v. West, 12 Vet. App. 272 (1999). Here, the pertinent provisions of the joint motion state that the Board in its September 2002 decision improperly found that a medical opinion diagnosing PTSD could not suffice to verify the occurrence of a claimed stressor where that stressor involved an alleged personal assault, and therefore the Board's reasoning in not making an additional attempt to obtain a medical examination was contrary to law. The Court also found that the Board did not give proper consideration to other alternative sources of corroborating evidence, outside of the service medical records, as required by the M21-1. Analysis The Court has held that VA Adjudication Procedure Manual M21- 1 (Manual M21-1), Part III, 5.14c (Feb. 20, 1996), provides substantive rules in which VA has undertaken a special obligation to assist a claimant in producing corroborating evidence of an in-service stressor in personal-assault cases. In Patton v. West, 12 Vet. App. 272 (1999), the Court held that because of the unique problems with documenting personal assault claims, VA is responsible for assisting the claimant in gathering, from sources in addition to the in-service records, evidence corroborating an in-service stressor. The Court noted that, of particular pertinence to the case were the provisions of the manual which stated that, "behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor" [MANUAL M21-1, Part III, P 5.14c(8)]; and that, "secondary evidence may need interpretation by a clinician, especially if it involves behavior changes" and that "evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician" [MANUAL M21-1, Part III, P 5.14c(9)]. In this case, there is no indication in the record, including in testimony and statements from the veteran, that the alleged sexual assault by a superior officer in service was ever formally reported to any source or that it was otherwise reduced to writing. Consequently, there are no formal records, such as police reports, of the incident which could be obtained. The veteran was notified by VA in a letter in June 1999 that she could obtain alternative sources of information to support her claim, including statements from those she identified as knowing about the assault at the time it is alleged to have occurred. The veteran was also asked whether she remembered the names of people she may have communicated with about her alleged sexual assault, including her commanding officer. No response was received from her. The Court has held that not only should additional corroborative evidence be sought in cases such as this, but in contrast to standard PTSD claims, a post-service opinion of a mental health professional can be probative to establish the occurrence of the alleged personal assault. See Patton, 12 Vet. App. at 280. The RO scheduled a VA psychiatric examination in December 1998. The veteran did not receive notice of that examination because she had moved. The RO contacted the veteran in November 1999 and the veteran requested another examination in Milwaukee, Wisconsin. The RO scheduled an examination on March 19, 1999. On March 29, 1999, the veteran called and asked that the examination be scheduled in Kansas City, Missouri. The record does not indicate that an examination was completed. Accordingly, this case is REMANDED to Veterans Benefits Administration (VBA) for the following actions: 1. VBA must assure that all notice and development required by the VCAA has been accomplished, including notifying the veteran of the evidence she needs to submit and that which will be obtained by VA. 2. VBA should again advise the veteran that evidence from sources other than her service records may constitute credible supporting evidence of her claimed stressor, and that she should furnish such evidence if possible. Examples of such evidence include, but are not limited to: Records from law enforcement authorities, mental health counseling centers, hospitals or physicians; and statements from family members, roommates, fellow service members or clergy. Evidence from these sources might include, for example, evidence of behavior changes following the personal assault. Examples of behavior changes that might result from a personal assault include, but are not limited to: A request by the veteran for a transfer to another military duty assignment; a change in work performance; substance abuse; episodes of depression, panic attacks or anxiety where there is no identifiable reason for the episodes; or unexplained economic or social behavior changes. Any such evidence identified by the veteran should be obtained or the reasons for its unavailability noted in the record. 3. The RO should then arrange for the veteran to be examined by a specialist in psychiatry. It is imperative that the psychiatric examiner review the pertinent medical records in the claims file and a copy of this REMAND. The psychiatric examiner should report all diagnoses found. The psychiatric examiner should state an opinion as to whether, given the evidence of record and the results of the examination and interview of the veteran, it is at least as likely as not that the stressor event reported by the veteran (a) in fact occurred, and (b) is related to a diagnosis PTSD, if found above. 4. After undertaking the steps listed above and any additional development deemed to be necessary, VBA should readjudicate the claim. If the claim remains denied, VBA should issue a supplemental statement of the case. Thereafter, the claims folder should be returned to the Board for further appellate review, if in order. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. See 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. Barry F. Bohan 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).