Citation Nr: 0334927 Decision Date: 12/12/03 Archive Date: 12/24/03 DOCKET NO. 03-00 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD), claimed as a psychiatric disorder based on personal assault. ATTORNEY FOR THE BOARD K . L. Wallin, Associate Counsel INTRODUCTION The veteran served on active duty from December 1984 to February 1985. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefit sought on appeal. In the veteran's VA-Form 9, she indicated that she both desired a hearing before the Board in Washington, D.C., and would not be able to appear at this hearing due to her mental health condition. The RO sought clarification of the veteran's hearing request. In a May 2003 Report of Contact, the veteran indicated that she wanted to cancel her hearing for June 2003. As such, the hearing request is deemed withdrawn. 38 C.F.R. § 20.702(e). REMAND A preliminary review of the record reveals the matter is not ripe for appellate disposition. Initially, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefined the obligations of VA with respect to the duty to assist and eliminated the former statutory requirement that claims be well grounded. The VCAA applies to this case as the veteran's formal claim was filed in May 2001, however; there has been no compliance with this law, as discussed in more detail below. Recent decisions by the U.S. Court of Appeals for Veterans Claims (Court) have mandated that VA ensure strict compliance with the provisions of the VCAA. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002)("Both the statute, 38 U.S.C.A. § 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."). In the instant case, the veteran has not been provided notice of the VCAA as mandated by the Court with respect to her service connection claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently invalidated provisions of 38 C.F.R. § 19.9(a)(2) and (a)(2)(ii). These provisions allowed the Board to take corrective action to provide notice of the VCAA where there was none, as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). The Board no longer has authority to attempt to cure VCAA deficiencies. See Disabled American Veterans v. Principi, 327 F.3d 1339 (Fed. Cir. 2003). The result is that a remand is necessary to notify the veteran of the applicable provisions of the VCAA, including what evidence is needed to support the service connection claim based on personal assault, what evidence VA will develop, and what evidence the veteran must furnish. See Quartuccio, supra. The veteran claims that she is entitled to service connection for PTSD based on a personal assault, which incurred in service. With regard to personal assault cases, VA has special evidentiary development procedures, which need to be followed prior to a disposition on the merits of the veteran's claim. The procedures are contained in VA Adjudication Procedure Manual M21-1 (M21-1). Specifically, M21-1, Part III, 5.14c subparagraph (8) (redesignated Part VI, paragraph 11.38b(2)), provides that "[i]f the military record contains no documentation 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. Examples of behavior changes that might indicate a stressor are (but not limited to): visits to a medical or counseling clinic or dispensary without specific diagnosis or specific ailment; changes in performance and performance evaluations; increased disregard for military or civilian authority; increased interest in tests for Human Immunodeficiency Virus (HIV) or sexually transmitted diseases; and breakup of a primary relationship." In addition, the regulations set forth in 38 C.F.R. § 3.304(f)(3) provide: if a post-traumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran's service 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. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these 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. 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 her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. In this case, the RO has failed to comply with the above described notification requirements in section M21-1 and 3.304(f)(3), and thus, the case must be remanded for such development. Once the veteran has responded and if VA makes a determination that there is any credible supporting evidence that the veteran was sexually assaulted during active service, then the veteran should be scheduled for a VA examination. The examiner will be asked to address the questions listed in the numbered paragraphs below. Finally, the Board notes the veteran's DD-214 lists the veteran's separation code as "JGA." While the case is in remand status, VA should clarify the veteran's character of discharge. All attempts at clarification and any responses thereto should be associated with the veteran's claims folder. Because of the reasons listed above, a remand in this case is required. Accordingly, this case is REMANDED for the following: 1. The claims file must be reviewed to ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied. See also 38 C.F.R. § 3.159 (2003). Particularly, the veteran must be notified of the applicable provisions of the VCAA, including what evidence is needed to support the claim, what evidence VA will develop, and what evidence the veteran must furnish. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) ("Both the statute, 38 U.S.C.A. § 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."). 2. In accordance with the provisions of M21-1, Part III, § 5.14, "PTSD Claims Based on Personal Assault," the VA should send the veteran an appropriate stressor development letter. The veteran should also 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) (2003). All specific examples of alternative sources of evidence listed in section 3.304(f)(3) must be included in the notification to the veteran. An appropriate period of time should be allowed for the veteran to respond and/or submit additional evidence. 3. Upon receipt of the veteran's response to the development in paragraph 2, VA should undertake any and all further development action indicated by the evidence of record concerning the veteran's claim for service connection for PTSD, claimed as a psychiatric disorder due to personal assault. VA should then make a determination as to whether there is any credible supporting evidence that the veteran was sexually assaulted during active service. A statement of the determination should be placed into the claims file. 4. Only after the development requested in paragraphs 1 through 3 has been completed, VA should then arrange for the veteran to be examined by a psychiatrist in order to evaluate any present mental disorders, including PTSD. 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. 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. Specifically, the psychiatric examiner should offer an opinion on the question of whether the veteran's psychiatric disability precludes her from obtaining and maintaining substantially gainful employment. 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. 5. The veteran must be properly informed of her scheduled VA examination, and she should be given notice of the consequences of failure to report for the examination, including an explanation of the provisions of 38 C.F.R. § 3.655. If the veteran does not report for the examination, the claims folder should include clear documentation of her failure to report, including a statement as to whether she failed to appear without notice, or whether she requested cancellation or postponement and rescheduling of the examination. 6. VA should attempt to clarify the veteran's character of discharge, which is listed as "JGA." All attempts at clarification and any responses thereto should be associated with the veteran's claims folder. 7. Thereafter, the veteran's claim of entitlement to service connection for PTSD, claimed as a psychiatric disorder based on personal assault, should be readjudicated. If the benefit sought on appeal remains denied, the veteran should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal. The veteran should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to ensure due process, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran 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. _________________________________________________ WARREN W. RICE, JR. 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).