Citation Nr: 1318968 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-16 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and K.K. ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. A hearing was held on March 22, 2012, by means of video conferencing equipment with the appellant in Denver, Colorado, before Kathleen K. Gallagher, a Veterans Law Judge, sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Veteran's claim was previously before the Board in May 2012, at which time the Board denied the claims for service connection for sepsis and PTSD and remanded claims for service connection for hepatitis C, a psychiatric disorder to include as secondary to hepatitis C, and chronic fatigue syndrome secondary to hepatitis C and PTSD. Thereafter, the Veteran appealed the Board's denial of the PTSD claim to the United States Court of Appeals for Veterans Claims (Court). In December 2012, the Veteran and the Secretary of VA (the parties) filed a Joint Motion for Partial Remand (JMR). The JMR moved for the Court to vacate and remand the May 2012 Board decision with respect to the PTSD claim, as the parties agreed that the Board failed to adequately discuss whether reasonable efforts were taken to assist the Veteran with obtaining evidence in support of her claim for PTSD due to in-service sexual assault and harassment. In January 2013, the Court granted the JMR. 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 Reason for Remand: To provide Veteran with assistance with obtaining evidence in support of the claim. The Veteran in this case claims that service connection is warranted for PTSD due to in-service sexual assault and harassment. In June 2007, the RO sent a VA Form 21-0781a (Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) Secondary to Personal Trauma) and requested that she provide detailed information regarding the in-service stressful event(s) that she believed caused her PTSD. On this form, the Veteran was specifically asked to provide the names and address of military personnel or civilian authorities to whom she reported the incident or from whom she sought help in order assist the Veteran in obtaining information from these sources. She was also advised that if she confided in other individuals, to include Chaplains, she may want to ask the individuals for a statement concerning their knowledge of the incident. In June 2007, the Veteran submitted VA Form 21-0781a and provided a statement in which she identified several in-service stressors which she believes caused her PTSD. She reported that the in-service stressors occurred between October and November of 1974. In the June 2007 statement, the Veteran described an incident that occurred after she was released from the hospital for treatment for sepsis during which she was immediately demoted. She stated that her drill sergeant ripped the corporal strips off her arm. The Veteran was then transferred to Fort Dix, New Jersey in September 1974. She also stated that she was sexually traumatized by male and female trainees, and by an officer who stated that "...I would not get papers signed if I did not allow him to 'have some fun with me' while he physically groped me." The Veteran stated that she sought counsel from the Chaplain on base at Fort Dix in November 1974 and that she was granted excess leave of 9 days in order to "get away from the problems." The Veteran relayed that she confided in one of her peers, Private M.G.; according to the Veteran's statement, M.G. approached the officer who had conducted himself inappropriately and had a conversation in his office regarding the incident. She stated that her release papers were eventually signed. During the March 2012 hearing, the Veteran testified that she was also harassed when she was stationed at Fort Jackson, prior to October 1974. She testified that she would wake up to a woman sitting on her bed and rubbing her body. The Veteran stated that she was later transferred to Fort Dix, New Jersey following the completion of basic training. While there, the Veteran testified that she continued to have problems with women and that she was pushed against a wall and groped by an officer. She testified that she reported the incident to the Chaplain and that the incident occurred in late October or early November. As explained above, the parties to the December 2012 JMR agreed that the Board did not adequately discuss whether reasonable efforts were made to obtain relevant information regarding the Veteran's claimed in-service stressors. Specifically, the parties noted the Veteran's report that she went to the Chaplain and confided to her peer Private M.G. regarding the claimed in-service sexual trauma and harassment. The parties highlighted in claims involving in-service personal assaults, VA has provided for special evidentiary development procedures and has undertaken a special obligation to assist a Veteran in producing corroborating evidence of an in-service stressor. See M21-1MR, part IV, subpart ii.1.D.17m and n; Patton v. West, 12 Vet. App. 272, 280 (1999); 38 C.F.R. § 3.304(f)(5). The parties cited the ruling in Forcier v. Nicholson, 19 Vet. App. 414, 422 (2006) in which the Court stated "If in the process of identifying these potential sources, a claimant provided the name or names of any persons who allegedly perpetrated the assault or the names of any potential witnesses, the Secretary's reasonable efforts to assist, as required under section 5103A(a), may also include attempting to assist the claimant in obtaining statements from these persons." Thus, the parties agreed that a remand was necessary in order for the Board to address whether reasonable efforts have been untaken to assist the Veteran with obtaining evidence regarding her claimed in-service sexual assault and harassment. In light of the December 2012 JMR, and the Court's ruling in Forcier, additional efforts must be undertaken in an attempt to obtain evidence that supports the Veteran's claims of in-service sexual assault and harassment. Although VA Form 21-0781a was provided to the Veteran in June 2007, it is unclear whether the Veteran understood that VA could assist her in obtaining statements and evidence in support of her claim if she provided sufficient information regarding the names and addresses of people she confided in or were witnesses to the claimed in-sexual assault and harassment. Thus, the RO or AMC should contact the Veteran again and request that she provide detailed information regarding her claimed in-service stressors. Specifically, the RO or the AMC should request that she provide the full name, rank, and address of her friend Private M.G. so that VA can assist in obtaining a statement from this individual. The RO or the AMC should also request that the Veteran provided detailed information regarding the name, address, approximate date, and location of the Chaplain who counseled her and offered her excess leave following her claimed in-service sexual trauma. Additionally, the RO or the AMC should also instruct the Veteran that she can submit statements from witnesses or confidants, such as Private M.G. or the in-service chaplain, in support of her claim. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask her for the complete name, unit assignments, and address of all the individuals that she confided in or were witnesses to the sexual assault/harassments that she claims took place while in service, to specifically include the complete name, unit assignments, and address for M.R. and the base Chaplain. If the Veteran provides enough information to identify any individual who served with her during active duty, by both name and unit assignment and/or address, use VA resources to locate the individuals (if any); and if any are located, to request that they provide a statement on the Veteran's behalf concerning their knowledge of the alleged stressful events (i.e., the Veteran's allegations of sexual assault/harassment in service). The RO or the AMC should also ask the Veteran to provide written statements from any individuals that she can contact herself concerning their knowledge of her allegations of sexual assault/harassment in service, to include any persons she confided in or were witnesses to the claimed in-service sexual assault and harassment. If any statements are obtained through VA resources or if the Veteran provides any statements on her own, the RO or the AMC should verify through service department sources (if applicable) that the individual offering a statement was actually stationed with the Veteran at the time in question. 2. Ask the Veteran to provide the name, address, and approximate dates of counseling with the base Chaplain following the claimed in-service sexual assaults and harassment. The RO or the AMC should attempt to locate any Chaplain counseling records adequately identified by the Veteran from appropriate sources. Any records and/or responses received should be associated with the claims file. A negative response for any requested records must be documented in the claims file. The Veteran and her representative are to be notified of unsuccessful efforts in this regard to allow the Veteran the opportunity to obtain and submit any such records for VA review. 3. If and only if, the RO or the AMC determines that there is credible supporting evidence that at least one claimed stressor actually occurred, the RO should arrange for the Veteran to be afforded a psychiatric examination. All indicated studies should be conducted. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. Based on a review of the entire claims file and the results of the examination, the examiner is asked to address the following questions: (a) Does the Veteran satisfy the criteria for a diagnosis of PTSD? (b) If PTSD is demonstrated, specify whether the Veteran has PTSD related to her military service, as opposed to any other traumatic event before or after service. For purposes of determining whether PTSD due to service is present, the examiner may only consider an alleged in-service stressful event(s) that the RO has found to be verified by credible supporting evidence. The examiner must adequately summarize the relevant history and clinical findings, and provide adequate reasons for the medical conclusions reached. If the examiner is unable to state an opinion without resorting to speculation, he or she must so indicate and explain why. Examples of types of reasons are the lack of appropriate expertise on the part of the clinician, the matter being beyond the current state of learning and knowledge in the relevant field of medicine, or a lack of an adequate factual basis in the record upon which to form an opinion. 4. If the Veteran is afforded a VA examination, the RO/AMC must review the examination report to insure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claim. If any benefit sought on appeal remains denied, the Veteran and her representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until she is otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. 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 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. _________________________________________________ KATHLEEN K. GALLAGHER 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) (2012).