Citation Nr: 0616801 Decision Date: 06/08/06 Archive Date: 06/26/06 DOCKET NO. 04-20 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD S. B. Mays, Associate Counsel INTRODUCTION The veteran served on active duty from March 1954 to March 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision of the Oakland, California Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2005, the veteran testified before the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing is associated with the claims folder and has been reviewed. 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 asserts that he is entitled to service connection for PTSD. He has been diagnosed with various psychiatric disabilities, to include PTSD. Service connection for PTSD 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). The veteran contends that he has PTSD as a result of an alleged sexual assault by two junior drill instructors during boot camp at Camp Matthews in April 1954. Service medical records fail to show that such an assault occurred. The veteran reported experiencing behavioral changes following the incident, such as drinking heavily. According to a February 1957 personnel record, the veteran was locked up for being drunk and disorderly after reportedly starting a fight with two sergeants. The veteran indicated that he did not discuss the assault with anyone until 1977 (see October 2003 statement). At that time, he told a childhood friend whom he trusted. Of record is a statement by such friend indicating that he initially noticed a change in the veteran's behavior when he returned home from boot camp, and then after his discharge from service. By a July 2003 letter, a VA psychologist indicated that the veteran had PTSD resulting in complete occupational impairment and marked social impairment. The psychologist felt that the veteran's PTSD is related to the alleged in- service 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 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 PTSD personal assault cases). Additionally, the veteran reported that he attends monthly treatment for his PTSD from the VA Medical Center (VAMC) in Fresno. The RO should obtain any outstanding treatment records. Accordingly, the case is REMANDED for the following action: 1. The RO should request all psychiatric treatment records dated from March 2004 to the present from the VAMC in Fresno, California. 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. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the veteran was exposed to a stressor(s) in service, and if so, what was the nature of the specific stressor(s). 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 veteran'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). In this regard, the RO should comment on the February 1957 incident of disorderly conduct. If the RO determines that the record establishes the existence of a stressor or stressors, the RO must specify what stressor(s) 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. 4. 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. If feasible, this examination should be conducted by a psychiatrist who has not previously examined, evaluated or treated the veteran. The examiner should review the entire claims folder, to include VA treatment notes dated in October 2002, December 2002, July 2003 and April 2003, as well as Dr. Dunkel's July 2003 opinion. 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). Any diagnosis must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multi-axial 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 there is a 50 percent probability or greater that the current symptomatology is linked to one or more of the in- service stressors found to be established by the record and found sufficient to produce PTSD. The examiner should reconcile any PTSD diagnosis based on an in-service stressor with the December 2002 VA psychiatric note. 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. 5. Thereafter, the RO should complete any additional development that is indicated and readjudicate the issue of entitlement to service connection for PTSD. 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. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ 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) (2005).