Citation Nr: 0423635 Decision Date: 08/26/04 Archive Date: 09/01/04 DOCKET NO. 03-17 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Sean A. Ravin, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Carr, Associate Counsel INTRODUCTION The veteran had active service from December 1972 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) from an April 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the veteran's claim. In February 2002, a hearing was conducted before a Decision Review Officer at the Nashville RO. The Board issued a final decision on this issue on April 8, 2003, which denied the veteran's claim. However, the veteran had submitted additional evidence directly to the RO with a waiver of regional office consideration. The RO did not forward this evidence to the Board before the decision was dispatched, and it was not associated with the claims file at the time the Board made its decision. Accordingly, in order to assure due process, the Board vacated the April 8, 2003 decision pursuant to 38 C.F.R. § 20.904 and in July 2003 issued a new decision that followed in its place. The appellant then appealed this decision to the United States Court of Appeals for Veterans Claims (Court). A Joint Motion for Remand was submitted in January 2004 and in February 2004 the Court issued an order granting the motion, vacating the July 2003 Board decision and the matter was remanded pursuant to 38 U.S.C.A. § 7252(a) for readjudication consistent with the motion. REMAND The Joint Motion for Remand stated that VA failed to provide notice pursuant to 38 U.S.C.A. § 5103(a). See Charles v. Principi, 16 Vet. App. 370 (2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The motion also stated that VA failed to assist the appellant fully develop her claim pursuant to 38 U.S.C.A. § 5103A. Further, it stated that the Board's decision did not contain an adequate statement of reasons and bases pursuant to 38 U.S.C.A. § 7104(d)(1). Specifically, with regard to compliance with 38 U.S.C.A. § 5103(a), the motion stated that none of the documents identified by the Board informed the appellant of the evidence needed to substantiate her claim of PTSD based on an in-service personal assault, nor did those documents indicate which part of that information and evidence the Secretary would attempt to obtain and which portion the appellant was expected to provide to VA. With regard to VA's duty to assist the appellant, the motion stated that VA failed to assist the appellant because it failed to provide a thorough and contemporaneous medical examination by a specialist. See 38 U.S.C.A. § 5103A. The motion stated that the parties agreed that the December 2000 VA examination by a staff psychologist was inadequate for VA rating purposes for three reasons, to include the absence of psychological testing, the examiner's failure to reconcile any of the prior PTSD diagnoses of record from both private and VA psychologists and psychiatrists, and finally, that the VA psychologist failed to explain why the appellant's rape in-service was a less than rewarding experience. Again, the appellant has asserted that she has PTSD due to a personal assault in-service. The Board notes that the decision by the United States Court of Appeals for Veterans Claims (Court) in Patton v. West, 12 Vet. App. 272 (1999), clearly alters the landscape in the adjudication of claims of service connection for PTSD based upon personal assault. In Patton, the Court emphasized that statements contained in prior decisions indicating that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'" of a claimed stressor 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," were made in the context of discussing PTSD diagnoses other than those arising from personal assault. Id. at 280; see also Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996). With regard to personal assault cases, the Court pointed out that "VA has provided special evidentiary development procedures, including the interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis." Id. (citing VA Adjudication Procedure Manual M21-1 (M21-1), Part III, 5.14c (8), (9)). The Court has also held that these provisions of M21-1, which provide special evidentiary procedures for PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations. See YR v. West, 11 Vet. App. 393 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997). Specifically, M21-1, Part III, 5.14c subparagraph (8) (redesignated PartVI, 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. Subparagraph (9) provides that "[r]ating boards may rely on the preponderance of evidence to support their conclusions even if the record does not contain direct contemporary evidence. In personal assault claims, secondary evidence which documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." The Court in Patton went on to note that the manual improperly appeared to require that the existence of the in- service stressor be shown by a preponderance of evidence. Any such requirement would be inconsistent with the so-called equipoise doctrine, where the benefit of the doubt is given to the claimant unless the evidence preponderates against the claim. Therefore, upon remand the veteran is to be given the opportunity to submit a full and detailed list of: 1) any evidence of behavioral changes which may support her claim; and 2) a list of fellow soldiers and/or civilians who may be able to provide lay statements as to either the occurrence of the claimed stressor, or changes in the veteran's observed behavior. The Board stresses that under M21-1, Part VI, 11.38b(2) the changes in the veteran's observed behavior must have been witnessed "at the time of the claimed stressors." Additionally, the Board notes that although M21-1 provides that evidence of changes of behavior that occurred at the time of the incident may indicate the occurrence of an in- service stressor, such evidence may need interpretation by a clinician. See M21-1, Part VI, 11.38b(2). In this case, the RO should, indeed, schedule the appellant for a VA PTSD examination. Applicable regulations provide that 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 actually occurred. 38 C.F.R. § 3.304(f). The examination is to include psychological testing and, furthermore, if PTSD is not diagnosed, the examiner is to reconcile his or her findings with the prior PTSD diagnoses in the claims folder. Specifically, the examiner is to state whether the new diagnosis represents progression of the prior diagnoses, correction of an error in the prior diagnoses, or development of a new and separate condition. See 38 C.F.R. § 4.125(b). Accordingly, the Board has no alternative but to defer further appellate consideration and this case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC for the following actions: 1. The RO should review the claims file and 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 66 Fed. Reg. 45620- 32 (August 29, 2001) (codified at 38 C.F.R. § 3.159). The RO should also ensure compliance with VA's obligations under the VCAA as interpreted by Charles v. Principi, 16 Vet. App. 370 (2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this regard, the RO is to send a letter to the appellant informing her of the evidence or information necessary in order to establish entitlement to service connection for her claim, to include the evidence needed to substantiate her claim of PTSD based on an in-service personal assault, and of VA's statutory duty to assist her in obtaining the evidence necessary to substantiate her claims. The letter is to specifically inform the appellant as to which part of that information and evidence necessary to substantiate her claim VA would attempt to obtain and which portion the appellant was expected to provide to VA. Additionally, the letter should request that she submit to VA any evidence in her possession pertaining to her claims on appeal. 2. The RO should request that the veteran identify independently verifiable evidence of behavioral changes which occurred at the time of the alleged sexual assault, and to provide a list of any fellow soldiers and/or civilians, and their addresses, who may be able to provide lay statements as to the occurrence of the claimed stressor, and/or changes which they observed in her behavior at the time of the claimed stressor. 3. The RO should ensure that its efforts conform to all relevant provisions of Manual 21-1 regarding development in PTSD claims based on personal assault, to include undertaking all reasonable efforts to locate any witnesses identified, and, if located, to obtain statements from them regarding their knowledge of the veteran's alleged stressor. 4. The RO should schedule the veteran for a VA psychiatric examination to determine whether she has PTSD under the criteria as set forth in DSM-IV. Psychological testing should be performed on the veteran. If the veteran has PTSD, the examiner should report whether it is at least as likely as not (50 percent probability or more) that (1) the veteran has PTSD as a result of a sexual assault during service or, (2) that any other diagnosed acquired psychiatric disorder is related to her military service. If the veteran's symptoms meet the DSM-IV criteria for a diagnosis of PTSD, the examiner must review the claims folder, to specifically include the service medical and personnel records and render an opinion as to whether there is evidence of changed behavior in service which would be consistent with the alleged sexual assault. If PTSD is not diagnosed, the examiner is to reconcile his or her findings with the prior PTSD diagnoses in the claims folder. Specifically, the examiner is to state whether any new diagnosis represents progression of the prior diagnoses, correction of an error in the prior diagnoses, or development of a new and separate condition. The claims folders and a copy of this REMAND must be provided to and reviewed by the examiner in conjunction with the examination. The examination report should reflect that such a review was conducted. All clinical findings and opinions, and the bases therefor, should be set forth. 5. The RO should then readjudicate the claim and, thereafter, if the claim on appeal remains denied, the veteran and her representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims 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 appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until she receives further notice. 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). _________________________________________________ C.W. SYMANSKI 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).