Citation Nr: 0417717 Decision Date: 07/01/04 Archive Date: 07/14/04 DOCKET NO. 03-11 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carol L. Eckart INTRODUCTION The veteran served on active duty from August 1983 to March 1984. This case comes before the Board of Veterans' Appeals (Board) from a rating decision of August 2002 from the Regional Office (RO) of the Department of Veterans Affairs (VA), in Newark, New Jersey. The RO denied entitlement to service connection for PTSD. The Board notes that a prior final denial of entitlement to service connection for a psychiatric disorder, classified as schizoaffective disorder, was made by the RO in a prior rating decision dated in December 1990. However, because the veteran is filing a claim for PTSD, which differs from the psychiatric disorder denied in 1990, there is no need to address the question of whether new and material evidence has been submitted. The veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in December 2003. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The veteran contends that she is entitled to service connection for PTSD or aggravation of some other psychiatric disorder besides PTSD based on harassment. She asserts in her hearing testimony that she was sexually harassed by a sergeant while she was working as an administrative assistant. She indicated that the sergeant was aware that she was having problems at the time of the harassment. She also testified that there were charges brought against the sergeant and that she was asked to testify against him. The hearing testimony revealed that service personnel records may exist that may be probative to the issue on appeal. A review of the record reflects that the service personnel records have yet to be obtained. The service medical records also reflect that the veteran sought treatment for psychiatric complaints in January 1984 and was diagnosed with dysthymic disorder. In addition because the veteran's claimed stressors primarily involve allegations of personal assault, threats, and harassment, any development of the record must be in accordance with that required of claims involving allegations of personal assault. See Patton v. West, 12 Vet. App. 272, 276 (1999). In Patton, the Court pointed out that there are special evidentiary development procedures for PTSD claims based on personal assault contained in VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c) (Feb. 20, 1996), and former MANUAL M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995). The general M21-1 provisions on PTSD claims in 5.14 require that in cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence. MANUAL M21-1, Part III, 5.14(b)(2). As to personal-assault PTSD claims, more particularized requirements are established regarding the development of "alternative sources" of information as service records may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. MANUAL M21-1, Part III, 5.14(c). Further, the provisions of subparagraphs (7) and (8) indicate that "[b]ehavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor", and that "secondary evidence may need interpretation by a clinician, especially if it involves behavior changes" and that "[e]vidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." When read together, the Court states that the subparagraphs show that in personal-assault cases the Secretary has undertaken a special obligation to assist a claimant in producing corroborating evidence of an in-service stressor. Also in Patton, the Court qualified prior statements contained in other Court decisions indicating that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'," and that "[a]n opinion by a mental health professional based on a post-service examination of the veteran cannot be used to establish the occurrence of the stressor." The Court stated that these quoted categorical statements were made in the context of discussing PTSD diagnoses other than those arising from personal assault. Moreau v. Brown, 9 Vet. App. 389 (1996). To that extent, the Court found that the above categorical statements in Moreau, and other cases where that may have been in accordance, are not operative. In addition, the Court noted that in two places MANUAL M21-1, Part III, 5.14, appeared improperly to require that the existence of an in-service stressor be shown by "the preponderance of the evidence." The Court clearly stated that any such requirement would be inconsistent with the benefit of the doubt doctrine, which is applicable where the evidence is in equipoise. Patton, 12 Vet. App. at 280. As noted above, in a post-traumatic stress disorder claim based on in-service personal assault in the nature of sexual harassment such as here, 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 post-traumatic stress disorder 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 or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 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) (2003) The Board finds that the requirements of 38 C.F.R. § 3.159 regarding the duty to assist and the requirements of 38 C.F.R. § 3.304(f) have not been met. All available government sources have not been checked in an attempt to verify the veteran's claimed stressor. Further, VA must either furnish the evidence of the stressor to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred or explain why it does not need to do so. To ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED for the following: 1. The AMC must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), and any other applicable legal precedent. Such notice should specifically apprise her of the evidence and information necessary to substantiate her claim and inform her whether she or VA bears the burden of producing or obtaining that evidence or information, and of the appropriate time limitation within which to submit any evidence or information. The AMC should also specifically request that he provide any evidence in her possession that pertains to the claim as explicitly required by 38 C.F.R. § 3.159(b). 38 U.S.C.A. § 5103(a) and (b) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). A record of her notification must be incorporated into the claims file. 2. The VBA AMC should request the veteran to provide more specific details regarding her alleged in-service stressors. She should be asked to provide, as specifically as possible, the dates and locations of any and all alleged stressors and any other information pertinent to verification. 3. The veteran should also be asked to identify potential alternative sources for supporting evidence of such reports. 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. If the veteran does in fact allege sexual harassment or other personal assault, the VBA AMC should afford her the opportunity to submit any alternate available sources that may provide credible support to the in-service sexual harassment to support her claim for service connection for PTSD, as provided in M21-1, Part III, para. 5.14(c). The veteran should be asked to provide any additional information possible regarding sexual harassment and to identify alternative sources for supporting evidence of such reports. 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 she must be as specific as possible because without such details an adequate search for verifying information cannot be conducted. 4. The VBA AMC should then request any supporting evidence from alternative sources identified by the veteran and any additional alternative sources deemed appropriate, if the veteran has provided sufficiently detailed information to make such a request feasible. 5. The VBA AMC should review the entire claims file and prepare a summary of the unverified claimed stressors based on review of all pertinent documents, to include the veteran's PTSD Questionnaire and all medical records. The summary and all associated documents, including a copy of this remand, all available service records, and any written stressor statements should then be sent to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), 7798 Cissna Road, Suite 101, Springfield, Virginia 22150, to obtain verification of the claimed stressors. The USASCRUR should be requested to provide any information which might corroborate any of the veteran's alleged experiences and stressors. This should include not only the allegations of sexual harassment, but also the records of any related adjudicative procedures that the veteran and the alleged offending party may have been involved in. An attempt should also be made to contact the U. S. Army Crime Records Center and Inspector General of the Army Post and the Army Post Equal Employment Opportunity Commission (EEOC), where the alleged sexual harassment occurred. 6. Thereafter, regardless of whether alleged stressors have been verified, the VBA AMC should afford the veteran a VA special psychiatric examination by a specialist who has not previously examined or treated her. The claims file, a separate copy of this remand, the stressor list compiled by the VBA AMC, and any information provided by the USASCRUR, and copies of the pertinent M21-1 criteria with respect to personal assault claims must be provided to the examiner for review prior and pursuant to conduction and completion of the examination. The examiner must annotate the examination report that all of the foregoing was in fact made available in conjunction with the examination. Any further indicated special studies, including psychological studies, should be accomplished. The examiner must determine the nature, severity, and etiology of any psychiatric disorder(s) present, to include PTSD, dysthymic disorder, bipolar disorder, schizoaffective disorder and any other psychiatric pathology found. The examiner should utilize DSM-IV in arriving at diagnoses and identify all existing psychiatric diagnoses. With respect to any reported personal assaults/harassments in service, the examiner is requested to analyze the service personnel records in light of the examples listed in M21-1, Part III, para. 5.14(c)(7). Specifically, the examiner should determine whether there is in- service and/or post service evidence of behavior changes at the time of the alleged stressor incident(s), which indicate their occurrence. See M21-1, Part III, 5.14(c)(7), (8). In doing so, the examiner should carefully review all of the veteran's statements on file regarding the event(s) of in-service harassment which may include personal assault as well as the secondary evidence and evidence of behavior changes shown in the service personnel records. It is requested that the examiner interpret the behavior changes and evidence pertaining thereto and render an opinion whether the behavior changes are related to the claimed stressors. If PTSD is diagnosed, the examiner should explain whether and how each of the diagnostic criteria is or is not satisfied. Again, if PTSD is diagnosed, the examiner must identify the verified stressor(s), including pre-service stressors alleged by the veteran, additional information concerning which may have been obtained in pre-service documentation and associated with the claims file. The examiner must be requested to determine whether any psychiatric disorder(s) diagnosed on examination had it onset prior to, during, or after service. It is requested that the examiner opine as to whether any psychiatric disorder(s) existing prior to service was/were aggravated by service. Any opinions expressed by the examiner must be accompanied by a complete rationale. 7. After undertaking any other development deemed essential in addition to that specified above, the AMC should re-adjudicate the veteran's claim. If any 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 discussion of all pertinent regulations. An appropriate period of time should be allowed for response. 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. 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 Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ CHERYL L. MASON 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).