Citation NR: 9730507 Decision Date: 09/04/97 Archive Date: 09/11/97 DOCKET NO. 96-12 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a permanent and total disability rating for pension purposes. 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Jacques P. DePlois, Esq. WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel REMAND The veteran served on active military duty in the Marine Corps from July 1953 to November 1954. It is noted, initially, that additional evidence has been forwarded to the Board by the appellant’s attorney. That evidence has not been reviewed by the RO and initial consideration by the RO has not been waived. Throughout the current appeal, the veteran has asserted that the examinations accorded to her with regard to her claim for a permanent and total disability rating for pension purposes did not provide adequate and thorough descriptions of her disabilities. She also reported that several of her disabilities, including her wrist and back, were “fairly stable” on the day of the evaluation because she had not “overused” them. Furthermore, at the personal hearing conducted before a hearing officer at the RO in April 1996, the veteran testified that pertinent treatment she had received from private physicians demonstrated that her disabilities are more severe than currently evaluated. Hearing transcript (T.) at 23. After a thorough review of the evidence included in the claims folder, the Board concludes that a remand is necessary to accord the veteran a more thorough examination which would provide a complete description of her disabilities. Moreover, the Board notes that, according to a review of the statement of the case as well as the supplemental statements of the case furnished to the veteran, the RO has not provided her with the rating criteria used to evaluate her disabilities. With regard to the issue of entitlement to service connection for PTSD, the veteran has claimed throughout the current appeal that, during her active service with the Marine Corps, she was exposed to “totally disgusting” behavior by other service women of a different sexual orientation than she and that these women made sexual remarks to her. See, e.g., T. at 1-10. She has also contended that she was sexually harassed when she attended a service stenographers school. See T. at 7. She asserts that the “deviant sexual practices and sexual harassment” to which she was exposed during service caused her to develop PTSD. T. at 1-2. The RO denied the veteran’s claim for service connection for PTSD on the basis that the evidence contained in the claims folder (including her service personnel records) did not verify that these alleged incidents occurred and that the service medical records failed to demonstrate treatment for any condition which could be construed to be the result of a stressful traumatic event or sexual harassment. Review of the claims folder indicates that the RO has made several attempts to obtain the veteran’s service personnel records. Pursuant to these efforts, the RO has received, and associated with the veteran’s claims folder, some service records. In addition, the veteran testified at the personal hearing that she has tried unsuccessfully to contact a fellow servicewoman who could verify the alleged in-service stressors. T. at 9. The veteran’s representative then asked the veteran if she knew of anyone else who could serve as a witness to these incidents. T. at 9. The veteran responded that she did not know of anyone else. T. at 9. Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition; credible supporting evidence that the claimed in-service stressor actually occurred; and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1996). Although the veteran’s claim is not precisely one of personal assault and she has admitted that there were other servicewomen who were exposed to the claimed stressors (and presumably could corroborate them), the Board concludes that the nature of the claim is such that the provisions of Manual M21-1, regarding claims based on personal assault and the method of developing such cases are applicable to this case. According to Manual M21-1, VA has recognized that, because assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. Manual M21-1, Part III, paragraph 5.14(c)(2). The requirement that the claims folder contain credible evidence to support the veteran’s assertion that the stressful event occurred does not mean that the evidence actually prove that the incident occurred, but rather that the preponderance of the evidence support the conclusion that it occurred. Manual M21-1, Part III, paragraph 5.14(c)(3). In addition to service records, alternative evidence must be sought. Manual M21-1, Part III, paragraph 5.14(c)(2), (4), (5). Such alternative sources that may provide credible evidence of the in-service stressor include: medical records from private (civilian) physicians or caregivers who may have treated the veteran either immediately following the incident or sometime later; testimonial statements from confidants such as family members, roommates, fellow service members, or clergy; and copies of personal diaries or journals. Manual M21-1, Part III, paragraph 5.14(c)(5). VA recommends the use of specific development letters to be furnished to the veteran in cases in which the stressful incident is a personal assault. See Manual M21-1, Part III, paragraph 5.14(c)(6) recommending the use of the sample development letter provided at Exhibits A.3 and A.4. It does not appear that the RO has informed the veteran of potential sources of verification of her claimed in-service stressors, including examples of behavior changes [see Manual M21-1, Part VI, paragraph 11.38(c)(2) and Manual M21-1, Part III, paragraph 5.14(c)(8) (February 20, 1996)], as well as other alternative sources of such information [see Manual M21-1, Part III, paragraph 5.14(c)(5)]. Moreover, the RO has not furnished the veteran with the development letters recommended by the VA for use in cases involving personal assault. See Manual M21-1, Part III, paragraph 5.14(c)(6) recommending the use of the sample development letter provided at Exhibits A.3 and A.4. Additionally, there is specific development to try to corroborate the veteran’s claimed stressors which the Board concludes should be undertaken. Accordingly, the case is REMANDED to the RO for the following: 1. The veteran’s attorney should be contacted and requested to have the veteran furnish a complete list of all medical personnel and facilities from which she has received treatment for any of her disabilities in recent years, including VA, private, and institutional treatment that the veteran has received. Any health care providers named by the appellant, from whom records have not already been received, should be contacted (after the appropriate releases from the veteran are obtained where necessary), and requested to provide copies of all treatment records in their possession pertaining to the veteran. She should also identify all counselors, therapists. psychiatrists or other mental health care providers by whom she has been evaluated or treated for any emotional problems, substance abuse or the like since her discharge from service. The RO should then try to obtain copies of her complete records. If these records are unavailable, that fact should be annotated in the claims folder. 2. The RO should furnish the veteran, through her attorney, with a development letter as recommended for use in cases involving personal assault. See Manual M21-1, Part III, paragraph 5.14(c)(6) (recommending the use of the sample development letters provided at Exhibits A.3 and A.4). In doing so, the RO should inform the veteran of potential sources of verification of her claimed in-service stressors, including examples of behavior changes [see Manual M21-1, Part VI, paragraph 11.38(c)(2) and Manual M21-1, Part III, paragraph 5.14(c)(8) (February 20, 1996)], as well as other alternative sources of such information [see Manual M21-1, Part III, paragraph 5.14(c)(5)]. Inasmuch as the veteran has not asserted that she was the only person subjected to the claimed stressors that she believes gave rise to PTSD, she should be specifically asked to provide the names (and addresses, or hometowns, if available) of any other service women (including the complete name of her friend Mary Lou) who resided in her barracks at El Toro and observed the offensive conduct; she should also identify any servicepersons who attended the stenographers school and could corroborate the claimed incidents that occurred there. The RO should then pursue all available avenues to assist the veteran in locating anyone identified for a statement regarding the claimed incidents. 3. The RO should attempt to obtain the veteran’s complete service personnel record, or a copy thereof. The National Personnel Records Center (NPRC). NPRC should be advised that the complete record is needed so the Board can study it to determine whether any documents tend to corroborate certain statements made by the veteran, such as the circumstances of her transfer to duty in Washington, D.C. If a copy of the complete record is not provided, NPRC should be asked to cite the authority for not making it available. 4. After the above requested development has been completed to the extent possible, and if satisfactory evidence corroborating the claimed stressors has not been received, the RO should refer the case to the Commandant of the Marine Corps, Headquarters, United States Marine Corps, Code MMRB, Quantico, Virginia 22134-0001. Copies of the applicable portion of this remand, all service personnel records, the appellant’s stressor statement received in September 1994, and the names of any witnesses who may be identified by the veteran should be submitted. The Marine Corps should be asked to provide corroboration of the claimed stressor if possible. Attention should be directed to the following: (1) whether based on any available historical information, it can be determined approximately how many enlisted Women Marines would have been stationed at the El Toro Marine Corps Air Station and resided in the veteran’s barracks during her tour there, (2) and whether there is any available information, such as unclassified Naval Investigative Service records, as to the prevalence of lesbian activities at El Toro during the veteran’s tour of duty. The Marine Corps also should be asked to suggest any other possible sources of information that might shed light on the likelihood that lesbian activities were essentially rampant and were blatantly practiced in the barracks at El Toro in the early to mid-1950s, as alleged by the veteran, despite the prohibition against such behavior, under the Uniform Code of Military Justice. (The RO should pursue any leads.) 5. After the above has been completed and any additional evidence or information has been received, the RO should determine which of the claimed stressors has been adequately documented, if any. The RO is reminded that the “sufficiency” of a stressor to cause PTSD is a medical determination and not an adjudicative one. 6(a). Thereafter, the veteran should be accorded examination by a panel of two board certified psychiatrists who have not previously examined her, on a fee basis if necessary, to determine the correct diagnosis of any psychiatric disorder. The RO must specify for the examiners the stressor(s) that it has determined have been established by the evidence of record. Each examiner must conduct a separate evaluation. The claims folder, and a copy of this remand, must be made available to the examiners, the receipt of which should be acknowledged in the examination reports. The veteran should be afforded psychological testing with PTSD subscales and the examiners should review the results of any testing prior to completion of the examination reports. All findings should be reported in detail. The examiners’ attention is directed to the extensive Roseburg VA Medical Center outpatient records in the file as of the time of this remand, which are essentially devoid of reference to PTSD, along with the Social and Industrial Survey report of November 1994 and the prior psychiatric examination report, and they must be reviewed for any information that would assist in determining whether the veteran has PTSD related to service. 6(b). The examiners must specifically state whether a diagnosis of PTSD is appropriate. If so, the examiners should specify the factors relied upon to support the diagnosis and the specific stressor(s) which prompted the diagnosis. In addition, the examiners must express opinions as to whether the in-service stressor(s) alleged by the veteran and confirmed by the RO are of sufficient quality to produce PTSD and whether there is a link between the current symptomatology and one or more of the in-service stressors. In that regard, the examiners should discuss the veteran’s civilian history of having been abused, including prior to service by her parents. See, for example, the history reported in the December 1994 VA psychiatric examination report. The examiners should utilize the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) in determining whether the veteran has PTSD. If that diagnosis is made and is deemed related to service, the examiners must clearly indicate the particular stressors, and include an explanation of why pre-service stressors are not the cause of PTSD. Additionally, the examiners should explain which of the DSM-IV diagnostic criteria are met and which are not, and provide a detailed explanation of the symptoms and findings that are deemed to satisfy the diagnostic criteria. A complete rationale for all conclusions must be provided. 7. Thereafter, the veteran should be accorded a VA general medical examination to determine the nature and extent of all of her disabilities. If deemed necessary, she should be referred for special examinations. All necessary tests and X-rays should be conducted, and the examiner(s) should review the results of any testing prior to completion of the report(s). The examination report(s) should include a detailed account of all manifestations of the disabilities found to be present. 8. The RO should review the examination reports and determine if they are adequate for rating purposes and in compliance with this remand. If not, they should be returned to the examiners for corrective action. It is essential that all questions posed by the Board be answered in order for the reports to be adequate. 9. Thereafter, the RO should readjudicate the issue of entitlement to service connection for PTSD, with consideration of the evidence sent directly to the Board, and the claim of entitlement to a permanent and total disability rating for pension purposes. In adjudicating the pension claim, the RO must provide an evaluation for each of the veteran's disabilities that are found on examination or otherwise shown by the evidence of record. This issue should then be considered under the two-prong test enunciated by the Court of Veterans Appeals in Talley v. Derwinski, 2 Vet.App. 282 (1992), Robert v. Derwinski, 2 Vet.App. 387 (1992), and Brown v. Derwinski, 2 Vet.App. 444 (1992). In other words, the RO must consider the "objective" and the "subjective" standards, including 38 C.F.R. Part 3, § 3.321 and Part 4, §§ 4.15 and 4.17 (1996). 10. If the benefits sought on appeal are not granted, the veteran and her attorney should be provided with an appropriate supplemental statement of the case which contains all applicable laws and regulations not previously furnished (including the diagnostic codes assigned to the veteran’s disabilities and the rating criteria used to evaluate these disorders) and afforded a reasonable period of time in which to respond. Thereafter, the case, in accordance with the current appellate procedures, should be returned to the Board for further appellate review. The purpose of this remand is to obtain clarifying evidence. No action is required of the veteran until she receives further notice. By this remand, the Board intimates no opinion as to the final outcome of the veteran’s claims. 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. JANE E. SHARP Member, Board of Veterans' Appeals 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 -