Citation Nr: 0707190 Decision Date: 03/12/07 Archive Date: 03/20/07 DOCKET NO. 04-27 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 J. Rose, Counsel INTRODUCTION The veteran had active military service from April 1966 to January 1970, and from December 1973 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) from a May 2003 rating decision of the Department of Veterans Affairs (VA), Saint Petersburg, Florida, regional office (RO). The veteran testified before a Decision Review Officer (DRO) at the RO in July 2005. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran asserts that he is entitled to service connection for 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 four sailors near the barracks on the submarine base in New London, Connecticut, in September 1966. He testified to the DRO that the four sailors beat him up and sexually assaulted him. He stated that they threatened his life if he informed anyone of the event. Service medical records fail to show that such an assault occurred. The veteran reported experiencing behavioral changes following the incident, specifically dropping out of submarine school in New London, Connecticut. According to his personnel records, the veteran was in New London, Connecticut from July 1966 to October 1966. The records also indicate that he was a student, non-graduate during that time. Medical evidence includes VA consulting reports dated in March and April 2001. The March 2001 psychiatric report indicated a diagnosis of PTSD from sexual trauma. The April 2001 psychological report noted PTSD symptoms, but no diagnosis. The veteran was enrolled in a trauma therapy clinic in July 2001. By a July 2005 letter, a licensed mental health counselor indicated that the veteran has PTSD resulting from military 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). 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) (2006); Patton v. West, 12 Vet. App. 272 (1999) (holding that certain special M21 manual evidentiary procedures apply in PTSD personal assault cases). At his hearing before the DRO, the veteran indicated that his dropping out of submarine school in New London, Connecticut was an example of behavior changes he experienced following his assault. The November 2005 supplemental statement of the case did not address whether this could possibly indicate or verify the occurrence of the alleged in-service stressor and if so should decide whether this evidence needs the interpretation by a clinician. See M21- 1, Part III, 5.14c (9). Accordingly, the case is REMANDED for the following action: 1. The RO should contact the appellant and inform him that he may submit any other corroborating evidence he may have pertaining to alleged stressor experienced during his service. The veteran should be advised that a meaningful research of his stressor will require him to provide the "who, what, where and when" of each stressor. Further, the RO should inform the veteran that he may submit any other evidence to verify his alleged stressor from military as well as nonmilitary sources, to include "buddy" statements and relatives. The RO should assist the appellant in obtaining such evidence, as appropriate. In connection with this development, the RO should ensure that all appropriate special development procedures mandated by M21-1, Part III(as codified in 38 C.F.R. § 3.304(f)(3)) for verification of non-combat stressors is fully accomplished and documented in the claims folder, to include issuance of the special development letter to the appellant advising him of the steps necessary to verify his non-combat stressors. 2. If indicated by the appellant's response, the RO should forward a summary of the veteran's claimed in-service stressors and copies of his service personnel records to the U.S. Army and Joint Services Records Research Center (JSRRC), and request JSRRC to attempt to verify the claimed stressor. 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 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. In this regard, the RO should comment on the veteran not completing his education in New London, Connecticut between July and October 1966. 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. 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. The physician should review the claims folder and a copy of this remand, and should determine the true diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. The physician should reconcile any PTSD diagnosis based on an in-service stressor with the March 2001 VA consultant report and the July 2005 statement. 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 it is at least as likely as not that there is a link between the current symptomatology and one or more of the in- service stressors found to be established by the record and found sufficient to produce PTSD by the examiner. 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 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. After completion of the above, the RO should readjudicate the issue of service connection for PTSD with consideration given to all of the evidence of record, including any additional medical evidence obtained by the RO pursuant to this REMAND. If any benefits sought on appeal remain denied, the RO should provide the appellant and his representative an adequate supplemental statement of the case. The supplemental statement of the case must contain notice of all relevant actions taken on his claim for benefits as ordered by this REMAND, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. The RO should then allow the appellant an appropriate period of time 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). 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. 2006). _________________________________________________ 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) (2006).