Citation Nr: 0407896 Decision Date: 03/26/04 Archive Date: 04/01/04 DOCKET NO. 02-00 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The veteran served on active duty from March 1981 to September 1987. This appeal arises from an August 1998 rating decision of the Department of Veterans Affairs (VA), Columbia, South Carolina, regional office (RO). The case was subsequently transferred to the St. Petersburg, Florida, RO. In November 2003, the veteran provided testimony before the undersigned via a videoconference hearing. During that hearing, the veteran withdrew the issue of whether new and material evidence had been submitted to reopen a claim for service connection for residuals of bilateral eye injury. Accordingly, that issue will not be addressed further in this decision. REMAND The veteran contends that he has post-traumatic stress disorder as a result of inservice stressors, including an alleged sexual assault by a civilian orderly while hospitalized for removal of an esophageal mass at Landstuhl Regional Army Medical Center in Germany in October 1986. The Board is of the opinion that the records of that hospitalization should be obtained and associated with the claims folder. Service connection for post-traumatic stress disorder generally requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125; 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. 38 C.F.R. § 3.304(f). Following a review of the record, the Board finds that there is an additional duty to assist the veteran with the development of his claim for service connection for post- traumatic stress disorder. Specifically, the RO must consider all of the special provisions of VA Adjudication Procedure Manual M21-1 (M21-1), Part III, regarding personal assault. M21-1 notes that: "Personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking." M21-1, Part III, 5.14c. M21-1 identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1, Part III, 5.14c(4)(a). When there is no indication in the military record that a personal assault occurred, alternative evidence, such as behavior changes that occurred at the time of the incident, might still establish that an in-service stressor incident occurred. Examples of behavior changes that might indicate a stressor include: visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; lay statements indicating increased use or abuse of leave without apparent reason; changes in performance or performance evaluations; lay statements describing episodes of depression, panic attacks or anxiety with no identifiable reasons for the episodes; increased or decreased use of prescription medication; evidence of substance abuse; obsessive behavior such as overeating or under eating; pregnancy tests around the time of the incident; increased interest in tests for HIV or sexually transmitted diseases; unexplained economic or social behavior changes; treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; breakup of a primary relationship. M21-1, Part III, 5.14c(7)(a)-(o). See also 38 C.F.R. § 3.304(f)(3) (2003); Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21 manual evidentiary procedures apply in post- traumatic stress disorder personal assault cases). The RO should also ensure compliance with the duty to notify and assist provisions of the VCAA, to include notifying the veteran of the evidence needed to substantiate his claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. See 38 U.S.C.A. § 5103(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In view of the foregoing, this case is remanded to the RO for the following development: 1. The RO should obtain the complete records of the veteran's October 1986 hospitalization for removal of an esophageal mass at Landstuhl Regional Army Medical Center in Germany. All records obtained should be associated with the claims folder. 2. The veteran should be afforded the opportunity to identify potential alternative sources of information to verify the claimed sexual assault as set forth in M21-1, part III, 5.14(c). He should be informed that these alternative sources could include, but are not limited to, private medical records; civilian police reports; reports from crisis intervention centers; testimonials from family members, roommates, fellow service members, or clergy; and copies of any personal diaries or journals. 3. The RO must also assure compliance with the requirements of the VCAA, codified, in pertinent part, at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). See also 38 C.F.R. §§ 3.102, 3.159, 3.326 (2003). The RO's attention is directed to Quartuccio, supra, pertaining to the amended version of 38 U.S.C.A. § 5103(a), which requires that the Secretary identify for the veteran which evidence the VA will obtain and which evidence the veteran is expected to present. 4. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the appellant was exposed to a stressor or stressors in service, and if so, what was the nature of the specific stressor or stressors. In rendering this determination, the attention of the RO is directed to the law cited in the discussion above. If official service records or alternative records discussed in M21-1, Part III, Sec. 5.14c corroborate the appellant's allegations of stressors occurring, the RO should specify that information. The RO should also indicate 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 and if so should decide whether this evidence needs the interpretation by a clinician. See M21- 1, Part III, 5.14c (9). If the RO determines that the record establishes the existence of a stressor or stressors, the RO must specify what stressor or stressors in service it has determined are established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 5. 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. This examination, if feasible, should be conducted by a psychiatrist who has not previously examined, evaluated or treated the appellant. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. 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. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. 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, and in so doing, the examiner should attempt to reconcile the multiple psychiatric diagnoses and/or assessments of record based on his/her review of all of the evidence of record, particularly with respect to prior diagnoses of PTSD. 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. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. 6. Thereafter, the RO should complete any additional development that is indicated and readjudicate the issue of entitlement to service connection for post-traumatic stress disorder. If the benefit requested on appeal is not granted, the RO should issue a Supplemental Statement of the Case, which must contain notice of all relevant action taken on the claim. A reasonable period of time for a response should be afforded. The appellant 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. _________________________________________________ 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) (2002).