Citation Nr: 0633921 Decision Date: 11/02/06 Archive Date: 11/16/06 DOCKET NO. 05-04 692 ) 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: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The appellant is a veteran who served on active duty from May 1969 to November 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The claims folder was subsequently transferred to the Newark, New Jersey RO. The rating decision on appeal denied service connection for PTSD. A final Board decision dated in December 1971 had denied service connection for pscyhoneurosis. At the hearing before the undersigned in September 2005, the issue on appeal was characterized as whether new and material evidence had been received to reopen a claim of service connection for a psychiatric disorder, to include PTSD. However, after close review of the arguments presented in the record, the Board concludes that in his present claim the veteran is not pursuing service connection for any psychiatric disability other than PTSD. Consequently, the issue on appeal is being characterized as entitlement to service connection for PTSD, as it was in the rating decision on appeal. Since a claim for service connection for PTSD is distinct from a claim for any other psychiatric disability, there is no need for the appellant to reopen his claim with new and material evidence. As the issue adjudicated in the rating decision on appeal is the same as that addressed herein, there is no prejudice to the appellant in the Board's consideration of that issue. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The veteran contends that he has PTSD as a result of stressors in service, specifically repeated sexual assaults by a barracks mate at Shepard Air Force Base, Texas, in July and/or August, 1969. The veteran's claims folder contains a VA examination report noting a diagnosis of PTSD. This examination also notes a post-service stressor of a motor vehicle accident in 1972 that resulted in serious injuries including a skull fracture. Service connection for PTSD 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 occurred38 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 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). 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) (2004); Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21 manual evidentiary procedures apply in PTSD personal assault cases). The stressor incidents alleged by the veteran appear to be ones possibly capable of corroboration and/or verification under the M21-1 procedures. Furthermore, if they are verified, an examination to determine whether they caused the veteran to acquire PTSD would be indicated. At the hearing before the undersigned, the veteran reported treatment by VA psychiatrists and psychologists at the Bricktown, New Jersey, VA facility. The claims folder contains records from that facility only through July 2003. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain for the claims file the complete records of treatment of the veteran for psychiatric disability from the VA facility in Bricktown, New Jersey, specifically all records since July 2003. 2. The veteran should be afforded the opportunity to identify potential alternative sources of information to verify the claimed physical 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 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. 4. If it is determined that the veteran was exposed to a stressor(s) in service, the RO should arrange for the veteran to be examined by a psychiatrist to determine whether he has PTSD resulting from exposure to such stressor event(s). The RO must advise the examiner what, if any, stressor(s) it has determined to be established by the record (and the examiner may only consider such stressor(s) as the precipitating event(s) in service for any diagnosis of PTSD. The veteran's claims folder must be available to, and reviewed by, the examiner in conjunction with the examination. In preparing the report of the examination, the psychiatrist should: (1) Discuss the sufficiency of the identified stressor(s) to produce PTSD; (2) If PTSD is diagnosed, discuss the signs and symptoms which support such diagnosis under DSM-IV; and (3) If PTSD is not diagnosed, discuss what is lacking to establish such diagnosis. (4) 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. The RO should readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the veteran and his representative the opportunity to respond. The case should then be returned to the Board if indicated. No action is required of the veteran until he is notified. The appellant has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ GEORGE R. SENYK 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) (2006).