Citation Nr: 0608160 Decision Date: 03/21/06 Archive Date: 03/29/06 DOCKET NO. 00-16 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Robert C. Scharnberger, Counsel INTRODUCTION The veteran served on active duty from December 1952 to November 1954. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 1999 rating decision of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). REMAND The veteran has stated that he is currently receiving treatment at the VA outpatient clinic (OPC) in Ponce, Puerto Rico. The RO must contact the VAMC in San Juan and the VA OPC in Ponce and obtain all treatment records dated from September 2000 to the present. Decisions of the Board must be based on all of the evidence that is known to be available. 38 U.S.C.A. § 5103(A) (West 2002). The duty to assist particularly applies to relevant evidence known to be in the possession of the Federal Government, such as VA records. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Counts v. Brown, 6 Vet. App. 473 (1994). Service connection for PTSD requires (1) medical evidence indicating a current diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. 3.304(f) (2005). In approaching a claim for service connection for PTSD, adjudicatory personnel must resolve the question of the existence of an event claimed as a recognizable stressor. If the adjudicators conclude that the record establishes the existence of such a stressor or stressors, then and only then, the case should be referred for a medical examination to determine the sufficiency of the stressor and as to whether the remaining elements required to support the diagnosis of post-traumatic stress disorder have been met. In such a referral, the adjudicators should specify to the examiner precisely what stressors have been accepted as established by the record, and the medical examiners must be instructed that only those events may be considered in determining whether stressors to which the veteran was exposed during service were of sufficient severity as to have resulted in current psychiatric symptoms. In other words, if the adjudicators determine that the record does not establish the existence of an alleged stressor or stressors in service, a medical examination to determine whether PTSD due to service is present would be pointless. Likewise, if the examiners render a diagnosis of PTSD that is not clearly based upon stressors in service whose existence the adjudicators have accepted, the examination would be inadequate for rating purposes. The veteran contends that he has PTSD as a result of inservice stressors including alleged sexual assault. 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 PTSD. 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). Where 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 or prescription medication; evidence of substance abuse; obsessive behavior such as overeating or under eating; 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) (2005); Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21-1 manual evidentiary procedures apply in PTSD personal assault cases). The veteran must be sent a VCAA letter that outlines this type of alternative evidence and informs the veteran of the type of evidence that can be used to substantiate his claim for service connection for PTSD based on personal assault. It is even more important in the instant case, because the veteran's complete service medical records are not available and it is possible that the records were affected by the 1973 fire at the National Personnel Records Center. Where the service medical records are lost and presumed destroyed the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). See also Marciniak v. Brown, 10 Vet. App. 198, 201 (1997) (Board complied with requirements set forth in O'Hare where heightened consideration was afforded due to the missing records), aff'd, 168 F.3d 1322 (Fed. Cir. 1998). In any event, if a stressor is confirmed, the veteran should be provided an examination to determine the diagnosis and etiology of his claimed disability. The examiner must be provided the claims folder in advance of the examination and the examiner is requested to review the claims folder and service medical records closely. The Court has held that "fulfillment of the statutory duty to assist ... includes the conduct of a thorough and contemporaneous medical examination...so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (citing Suttman v. Brown, 5 Vet. App. 127, 138 (1993) (duty to assist includes providing the veteran a thorough and contemporaneous medical examination when needed)). Because there is additional medical evidence to obtain and additional notice requirements, this case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington DC for the following action: 1. The RO should inform the veteran of the evidence necessary to substantiate a claim for PTSD based on personal assault. This should specifically include sending a VCAA notice letter that outlines sources of alternative evidence such as clergy statements, evidence of behavior changes, counseling evidence, and other such evidence as outlined in the M21-1, Part III, 5.14c(7)(a)-(o). 2. The RO should contact the VAMC in San Juan, Puerto Rico, and the VA OPC in Ponce, Puerto Rico, and obtain all treatment records for the veteran dated from September 2000 to the present. If no such records are available, the RO should obtain written confirmation of that fact. 3. If and only if the RO is able to corroborate any of the veteran's claimed stressors then the veteran should be provided a psychiatric examination. If an examination is ordered, the RO should prepare a report detailing the nature of any stressor which it has determined is corroborated by the record. This report is then to be added to the claims folder. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. The psychiatric examiner should review the record, examine the veteran, and provide an opinion as to whether any of the verified stressors are sufficient to produce PTSD and whether it is at least as likely as not (that is, a probability of 50 percent or better) that the veteran has PTSD related to a stressor which the RO has identified as corroborated. The examination report should include the complete rationale for all opinions expressed. All necessary special studies or tests, to include psychological testing and evaluation, should be accomplished. The entire claims folder and a copy of this REMAND must be made available to the examiner prior to the examination. 4. Following the above, the RO should readjudicate the veteran's claim, to include specifically considering all evidence made part of the record since the RO last issued a supplemental statement of the case. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case that contains a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Subsequently, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. No action is required of the veteran until he is notified by the RO. 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. _________________________________________________ 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) (2005).