Citation Nr: 1803784 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 12-06 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). WITNESSES AT HEARING ON APPEAL Veteran and J.H. ATTORNEY FOR THE BOARD R. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1976 to June 1979. This matter came to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. As set forth above, the claim is currently in the jurisdiction of the RO in Columbia, South Carolina. In connection with his appeal, the Veteran requested and was scheduled for a hearing before a Veterans Law Judge at the RO. Although he was duly notified of the time and date of the hearing in an April 2016 letter, he failed to appear and neither furnished an explanation for his failure to appear nor requested a postponement or another hearing. Pursuant to 38 C.F.R. § 20.702(d), when an appellant fails to appear for a scheduled hearing and has not requested a postponement, the case will be processed as though the request for a hearing had been withdrawn. Thus, the Board will proceed with consideration of the appeal based on the evidence of record. In December 2016, the Board remanded the issues of entitlement to service connection for a left hip disability and PTSD on appeal to the Agency of Original Jurisdiction (AOJ) in order to ensure that all notification and development action was completed and to readjudicate the claims on appeal. While in remand status, the RO issued a Statement of the Case for the issue of entitlement to service connection for a left hip disability, in compliance with the Board's remand directives. The record contains no indication that the Veteran perfected an appeal regarding the left hip disability claim. Thus, this matter is not in appellate status. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran contends 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); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f) (2017). Regarding a current diagnosis, the Veteran has been variously diagnosed with PTSD, psychosis, anxiety, depression, dysthymic disorder, alcohol and cocaine dependence, and substance induced mood disorder. Regarding in-service stressors, the Veteran has raised multiple theories of entitlement to PTSD. The Veteran contends that he developed PTSD as a result of a personal assault during basic training. See February 2006 VA 21-4138 Statement in Support of Claim. The Veteran also contends that he witnessed an eight-year old girl whom he had befriended being shot in the head while serving in Africa. He further stated that he had witnessed people kill for food. See July 2011 Hearing Testimony. The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted in November 2000. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). With regard to the Veteran's claim of service connection for PTSD, the Board recognizes that the present case, which involves allegations of a personal assault (the alleged beating of the Veteran during basic training), falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events about which the Veteran complains. See, e.g., Patton v. West, 12 Vet. App. 272, 281 (1999). As noted under Part IV, Subpart ii, Chapter 1, Section D, Paragraph 17 of the VA Adjudication Procedures Manual Rewrite (M21-1 MR), 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. Id. Service records may not contain evidence of personal assault, and alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault. See YR v. West, 11 Vet. App. 393, 399 (1998). The Manual also notes that because personal assault can be an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, making it difficult to obtain direct evidence and requiring that alternative evidence be sought. Likewise, under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; or tests for sexually transmitted diseases, and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; 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 Board notes that § 3.304(f)(5) also stipulates that VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. In this case, a review of the record reflects that the Veteran has not been apprised of 38 C.F.R. § 3.304(f)(5) or that evidence from other sources could help corroborate the claimed in-service personal assault stressor, nor has he been provided a list of those alternative sources from which he could submit evidence to help substantiate the stressor incident. As such, the AOJ must further develop the Veteran's claim in accordance with those special alternative evidentiary development procedures associated with personal assault claims as noted in 38 C.F.R. § 3.304(f)(5) and the M21-1 MR, Part IV, Subpart ii, Chapter 1, Section D, Paragraph 17. Thus, the Board finds action is required to satisfy the notification provisions of the VCAA. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (VCAA notice requirements of 38 U.S.C. § 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 appellant's service and the disability; (4) degree of disability; and (5) effective date of the award). After providing the required notice, the AOJ must again attempt to obtain any pertinent outstanding evidence for which the Veteran provides sufficient information and, if necessary, authorization. See 38 U.S.C. § 5103A (a), (g); 38 C.F.R. § 3.159. See also Charles v. Principi, 16 Vet. App. 370 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Credible supporting evidence that a claimed in-service stressor occurred is important in light of the specific elements necessary to substantiate a service connection claim for PTSD. See 38 C.F.R. § 3.304(f) (2017). Under the circumstances of this case, the Board believes that additional effort should be undertaken to allow the Veteran to submit any corroborating evidence, to include supportive statements from other individual(s) who may be able to provide corroborative evidence of the Veteran's claimed personal assault stressor. Therefore, on remand, the AOJ must search for other evidence corroborating the assault. Furthermore, as instructed in the remand, the Veteran must be notified if the search for corroborating information leads to negative results. Accordingly, the case is REMANDED for the following action: 1. The AOJ must send to the Veteran a corrective VCAA notice that explains specifically what evidence and information is required to substantiate a claim of service connection for PTSD based on a claim of in-service personal assault. See 38 C.F.R. § 3.159 (2017). The Veteran must be specifically informed of the information or evidence he should submit and of the information or evidence that VA will obtain with respect to his claim of service connection for PTSD. The Veteran must be specifically notified that an alleged personal assault in service may be corroborated by evidence from sources other than his service records, as defined in 38 C.F.R. § 3.304(f)(5). (All specific examples of alternative sources of evidence listed in this regulation must be included in the notification letter.) 2. The AOJ must contact the Veteran and ask him for the complete name, unit assignments, and addresses of all the individuals that he confided in or were witnesses to the assault that he claims took place while in service. The AOJ should, to the extent feasible, assist the Veteran in obtaining statements from identified individuals. The Veteran should be specifically informed that he should submit statements on his own behalf, or have others forward them directly to the AOJ. If any statements are obtained, the AOJ should verify through service department sources (if applicable) that each individual offering a statement was actually stationed with the Veteran at the time in question. 3. Any other sources of treatment records identified by the Veteran should also be contacted. All records and/or responses received should be associated with the claims file. If any alleged records sought are determined to be unavailable, the Veteran must be notified of that fact pursuant to C.F.R. § 3.159(e) (2017). 4. After associating with the claims file all available records and/or responses received pursuant to the above-requested development, the Veteran must be scheduled for a VA examination by a psychiatrist and be advised that failure to appear for any examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2017). The entire claims file, to include a complete copy of this remand, must be made available to, and reviewed by, the designated examiner. The examiner must specifically provide an opinion as to whether the Veteran has symptomatology that meets the diagnostic criteria for PTSD, to include in particular as due to the alleged in-service assault. In the report, the examiner must address the relationship between any diagnosed PTSD and the Veteran's alleged in-service stressor and must specifically address whether the alleged stressor is adequate to support a diagnosis of PTSD; and whether his symptoms are related to the alleged stressor. In addition to an opinion regarding PTSD, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran has any other current acquired psychiatric disorder that is related to his active military service. In so opining, the examiner must address the Veteran's various diagnoses of psychosis, anxiety, depression, dysthymic disorder, alcohol and cocaine dependence, and substance induced mood disorder as assigned by multiple VA and private treatment providers. A rationale must accompany all opinions rendered by the examiner. 5. After the development requested above has been completed, the RO should again review the record. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran 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. §§ 5109B, 7112 (West 2014). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2014), 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) (2017).