Citation NR: 9717033 Decision Date: 05/19/97 Archive Date: 05/29/97 DOCKET NO. 95-14 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. S. Hughes, Associate Counsel INTRODUCTION The veteran served on active duty from December 1974 to July 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which denied the appellant’s claim seeking service connection for post-traumatic stress disorder (PTSD). REMAND Initially, the Board notes that the claims folder contains VA and private treatment records that document psychiatric treatment of the veteran and reflect various psychiatric diagnoses, including the diagnosis of PTSD. The Board recognizes that the veteran’s primary contention is that he developed PTSD as a result of being raped by two members of the Air Force Police during his period of service. The veteran has further contended that he reported the rape to his Commanding Officer who told the veteran that he did not want to hear it and gave the veteran a direct order never to bring it up again. Accordingly, although the veteran relates that he sought medical treatment subsequent to the assault, he did not discuss this incident with anyone until his November 1976 VA psychiatric examination. He claims that he now experiences nightmares, shame, depression, and a feeling of being “dirty” as a result of the rape. The evidence of record, including the veteran’s testimony at his RO and Board hearings, reflects that when he filed his initial claim in August 1976, one month after his discharge from service, he claimed service connection for a nervous disorder. Furthermore, during his November 1976 VA psychiatric examination conducted in relation to this claim, the veteran recalled that his difficulties began after he was jumped and raped by fellow soldiers. The Board further notes that during the pendency of this appeal, VA issued revised regulations amending the section of the VA Schedule for Rating Disabilities on Mental Disorders. See 61 Fed.Reg. 52695-52702 (1996) (to be codified at 38 C.F.R. § 4.130). Although the instant case is a claim of service connection for a psychiatric disorder and not one of an increased rating of an already service-connected disorder, the Board notes that the revised mental disorders regulations apply DSM-IV versus the previously applied DSM-III in the recognition and characterization of a particular mental disorder, including PTSD. To the extent that any change in such application affects the issue of service connection for such disorder, that change would have an impact on the current issue on appeal. In view of the intended effect of this action to ensure that the rating schedule uses current medical terminology, unambiguous criteria, and that it reflects medical advances which have occurred since the last review, , in an effort to extend to the veteran every equitable consideration, the Board believes that the veteran’s claim should be evaluated pursuant to the revised regulations, and that the veteran be afforded a VA psychiatric examination. 38 C.F.R. § 3.655 addresses the consequences of the veteran’s failure to attend a scheduled medical examination. The United States Court of Veterans Appeals (Court) has held that the VA is not required to go on endless “fishing expeditions” in order to find evidence which might possibly support a claim while the claimant waits in a passive role. See Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992). In this case, it appears that the sexual assault may be substantiated based on the specific information provided by the veteran with regard to his reporting of the assault to his Commanding Officer. Regarding noncombat stressors, the Court has recently held that “credible supporting evidence” means that the veteran’s testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. See Cohen v. Brown, No 94-661 (U.S. Vet. App. March 7, 1997), slip op. at 20; Moreau v. Brown, 9 Vet.App. 389 (1996); Dizoglio v. Brown, 9 Vet.App. 163, 166 (1996). The VA Adjudication Procedure Manual M21-1 (M21-1) provides that the required “credible supporting evidence” of a noncombat stressor “may be obtained from” service records or “other sources.” Manual M21-1, part VI, 11.38. Specific to claims based upon personal assault, M21-1, part III, 5.14c provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred. Included among the sources are statements from confidants, such as fellow service members. Finally, the record shows that the veteran is in receipt of Social Security disability benefits. However, records from the Social Security Administration have not been associated with the veteran’s claims folder. Although the Social Security Administration disability decision is not controlling for VA determinations, it is certainly pertinent to the instant claim. See Murincsak v. Derwinski, 2 Vet.App. 363 (1992); Collier v. Derwinski, 1 Vet.App. 413, 417 (1991). Accordingly, the Board is of the opinion that an attempt should be made to retrieve these records so that so that the adjudication of the veteran’s claim will be a fully informed one. To ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to his claim, the case is remanded for the following development: 1. The RO should contact the National Personnel Records Center and request that it provide copies of performance evaluations for the veteran during his period of active service. 2. The RO should contact the veteran and determine the location of all psychiatric treatment he has received since service. After securing any necessary authorization from the veteran, the RO should secure copies of all treatment records identified which are not already of record. 3. At the same time, the RO should request from the veteran a comprehensive statement of potential alternative sources for supporting evidence regarding the stressor he alleges occurred in service. The RO inquiry should include possible sources listed in M21-1, part III, 5.14c(5). A field examiner should be utilized if a personal interview is deemed necessary to obtain any supporting evidence or if specific records or statements sought cannot otherwise be provided. The veteran should be advised that this information is vitally necessary to obtain supportive evidence of the stressful event and that he must be as specific as possible because without such details an adequate search for supporting information cannot be conducted. Thereafter, the RO should request any supporting evidence from alternative sources identified by the veteran. 4. The RO should contact the appropriate sources to obtain information regarding the current whereabouts of the Commanding Officer for the veteran’s unit at the time of the assault. 5. If the Commanding Officer is located, the RO should obtain authorization from the veteran to release pertinent information regarding his claim of entitlement to service connection for PTSD to this individual and the Commanding Officer should be requested to comment on the veteran’s recollection of the incident and provide his own assessment of the event. 6. The RO should also contact the Social Security Administration and secure a copy of the decision awarding the veteran Social Security disability benefits, as well as copies of all supporting medical records utilized in making that decision. 7. The RO should review the file and prepare a summary including all associated documents and then make a specific determination, in accordance with the provisions of 38 C.F.R. § 3.304(f), with respect to whether the veteran was exposed to a stressor, or stressors, in service, and, if so, what was the nature of the specific stressor or stressors established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 8. After the foregoing development has been completed to the extent possible, and if it is determined that there is credible supporting evidence that a claimed stressor actually occurred, the RO should arrange for the veteran to be afforded a VA psychiatric examination by a psychiatrist who has not previously examined him to determine the correct diagnosis of any psychiatric disorder present and to determine whether the diagnostic criteria for PTSD are satisfied. The examination report must reflect a review of pertinent material in the claims folder. The examiner should integrate previous psychiatric findings and diagnoses with current findings to obtain an accurate picture of the veteran's psychiatric status. The examiner should be informed of the stressor(s) that have been verified. The examiner should be requested to provide an opinion as to the etiology of any such condition. Regarding PTSD, if found, the examiner should express an opinion as to whether the veteran has PTSD related to his military service and whether a diagnosis of PTSD is supportable solely by the stressor(s) that have been supported in the record. The examiner should be asked to comment on the significance, if any, in the diagnostic assessment of evidence that is indicative of behavioral changes (see M21-1, part III, 5.14c(8)(9)). The report of examination should include the complete rationale for all opinions expressed. All special studies or tests, to include psychological testing and evaluation, should be accomplished. The examiner must assign a Global Assessment of Functioning Score (GAF) which is consistent with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, DSM IV, and explain what the assigned score means. The claims folder must be made available to the examiner for review in conjunction with the examination. Prior to the examination, the RO must inform the veteran, in writing, of all consequences of his failure to report for the examination in order that he may make an informed decision regarding his participation in said examination. 9. Following completion of the foregoing, the RO should review the claims file to ensure that all of the requested development has been completed in full. In particular, the RO should review the psychiatric examination report to verify that any diagnosis of PTSD was based on the verified history provided by the RO. If the examiner relied upon a history which was not verified, that examination report must be returned as inadequate for rating purposes. The Board emphasizes that the Court has held that a diagnosis of PTSD, related to service, based on an examination which relied upon an unverified history is inadequate. West v. Brown, 7 Vet.App. 70, 77 (1994). 10. After undertaking any development deemed appropriate, in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for PTSD. Following completion of the development, the RO is to review the claim. If the claim remains denied, the veteran and his representative should be furnished a supplemental statement of the case. They should be afforded the appropriate period of time within which to respond thereto, at their option, as provided by governing regulation. Then, if otherwise in order, the case should be returned to the Board after compliance with all requisite appellate procedures. No action is required of the veteran until he is so informed. The Board intimates no opinion as to the outcome of the veteran’s case, pending completion of the requested development. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1996) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MICHAEL A. PAPPAS Acting Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1996). - 2 -