Citation Nr: 0810185 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 96-00 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant is a veteran who served on active duty from February 1972 to September 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 1995 rating decision by the Newark, New Jersey Department of Veterans Affairs (VA) Regional Office (RO). In August 1996, the veteran appeared for a personal hearing before a hearing officer at the RO. In February 1997 he appeared before the undersigned at a Travel Board hearing at the Newark RO, and in April 2002 he appeared before the undersigned at a hearing in Washington D.C. The case was before the Board in May 2002, when the Board denied service connection for PTSD. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2003, the Court issued an order that granted a Joint Motion for Remand to the Board (Joint Motion) filed by counsel for both parties, vacated the Board's May 2002 decision, and remanded the matter on appeal to the Board for action in compliance with the Joint Motion. Pursuant to the Court's Order, the Board remanded the case to the RO in November 2003 for readjudication consistent with the Joint Motion. In May 2005, the Board issued a decision which denied service connection for PTSD. In a July 2007 memorandum decision, the Court vacated the Board's decision and remanded the matter for readjudication. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any action on his part is required. REMAND The veteran maintains that he currently has PTSD as a result of in-service personal and sexual assault. As an initial matter, the veteran's private attorney has asserted that the Board failed to ensure that the RO fulfilled its duty to assist under the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, she stated while the RO sent the veteran a VCAA notice letter and standard PTSD questionnaire in March 2004, PTSD claims based on personal assault in service are unique and require a special notice letter that advises a claimant of the various ways in which personal and sexual assault may be corroborated, to include: behavior and/or performance changes; records from law enforcement authorities, mental health counseling centers, hospitals, or physicians; statements from family members, fellow service members, or clergy; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. See July 2006 Brief of Appellant. In the July 2007 decision, the Court stated that it would not address the veteran's argument concerning duty to assist; therefore, this is still an open question. Presumably, the veteran's attorney is well-versed in VA governing law and regulations, including the VCAA, and is advising the veteran. However, as it is asserted that the veteran is uninformed, and to ensure that due process requirements are met, notice of alternative forms of evidence he may submit to support the alleged "personal assault" stressor is necessary. See 38 C.F.R. § 3.304(f)(3) and VA ADJUDICATION PROCEDURE MANUAL M21- 1MR, Part IV.ii.1.D.17. Moreover, in its May 2005 decision that denied service connection for PTSD, the Board noted that the veteran's claim that he was beaten and sexually assaulted several times by a fellow prisoner at Fort Leavenworth during his military service could not be verified. In the Court's July 2007 memorandum decision, it was stated that remand was required because the Board failed to provide adequate reasons and bases for its decision. Specifically, the Court found that the Board failed to properly discuss statements from the veteran's wife regarding his behavior changes after his military service, and medical opinions from the veteran's treating VA physician regarding the veracity of his statements. Upon further review of the evidence of record, the Board finds that an additional medical opinion from a psychiatrist is necessary to provide insight into the behavior changes described by the veteran's wife. Finally, on March 3, 2006, the Court issued a decision in the consolidated appeal Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In view of the need to return the case to the RO for the reasons outlined above, the Board finds it appropriate to also direct that action be taken to remedy any inadequacy of notice under the Court's holding in Dingess. Accordingly, the case is REMANDED for the following action: 1. The RO should issue a letter to the veteran and his attorney informing them of the provisions of 38 C.F.R. § 3.304(f)(3) concerning the evidence that can be submitted to establish the occurrence of the alleged in-service personal and sexual assault, request the veteran to submit any pertinent evidence in his possession, and request him to either submit alternative evidence of the personal and sexual assault or provide the identifying information and any necessary authorization to enable the RO to obtain the evidence on his behalf. Specifically, he should be advised of the various ways in which personal and sexual assault may be corroborated. Such alternative forms of evidence include, but are not limited to: behavior and/or performance changes; records from law enforcement authorities, mental health counseling centers, hospitals, or physicians; statements from family members, fellow service members, or clergy; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. The letter should also request that the veteran's wife provide a statement describing, in detail, the behavior changes that she noticed in the veteran after he returned from his military service. This statement should include when the onset of the changes occurred and the type of changes that she observed. The RO should also provide the veteran notice regarding the rating of disability and effective dates of awards in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran and his attorney should have ample opportunity to respond. 2. The RO should take appropriate steps to obtain a copy of any pertinent evidence identified but not provided by the veteran. If the RO is unable to obtain a copy of any pertinent evidence identified by the veteran, it should so advise the veteran and his attorney and ask them to provide copies of the outstanding evidence. The RO should arrange for any further development necessary to corroborate that the alleged stressor event in service actually occurred. 3. The RO should also arrange for the veteran to be afforded a VA examination by a psychiatrist to determine if he has PTSD due to an in-service stressor event. The veteran's claims file, to include a copy of this Remand, must be reviewed by the examiner in conjunction with the examination. The examiner should specifically review the statements provided by the veteran's wife, including any statements submitted as a result of this remand and those submitted in 1997. The examination and the report thereof should be in accordance with DSM-IV. Following examination of the veteran, review of his pertinent medical history, and with consideration of sound medical principles, the examiner should opine whether the veteran has PTSD as a result of a personal assault in service. The opinion should include comment as to: (1) Whether the behavioral changes noted by the veteran's wife reflect that he was assaulted during his incarceration at Fort Leavenworth; (2) Whether the veteran's prison experience, of itself, would produce behavioral changes of the type described by the veteran's wife. The examiner should explain the rationale for all opinions expressed and conclusions reached. 4. Thereafter, the RO should readjudicate the veteran's claim of entitlement to service connection for PTSD in light of all pertinent evidence and legal authority. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the veteran and his attorney the opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. See 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ 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) (2007).