Citation NR: 9742139	
Decision Date: 12/22/97		Archive Date: 12/30/97
DOCKET NO.  96-24 677	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in 
Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for an acquired psychiatric 
disorder, to include post-traumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.



WITNESSES AT HEARINGS ON APPEAL

Veteran and his brother



ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel



INTRODUCTION

The veteran served on active duty from March 1983 to March 
1989; he also had subsequent active duty for training with 
the United States Naval Reserves.  He has been represented 
throughout his appeal by Paralyzed Veterans of America, Inc.  

This matter came before the Board of Veterans’ Appeals 
(hereinafter Board) on appeal from a rating decision of March 
1996, by the Winston-Salem, North Carolina Regional Office 
(RO), which denied the veteran’s claim of entitlement to 
service connection for an acquired psychiatric disorder, to 
include PTSD.  The notice of disagreement with this 
determination was received in April 1996.  The statement of 
the case was issued in April 1996.  The substantive appeal 
was received in May 1996.  The veteran appeared and offered 
testimony at a hearing before a hearing officer at the RO in 
August 1996.  A transcript of this hearing is of record.  A 
supplemental statement of the case was issued in September 
1996.  Following the receipt of additional medical records, a 
supplemental statement of the case was issued in August 1997.  
The appeal was received at the Board in November 1997.  

In November 1997, the veteran appeared in Winston-Salem, 
North Carolina, for a videoconference hearing before the 
undersigned, sitting in Washington, D.C.  The veteran 
accepted this hearing in lieu of a personal hearing.  A 
transcript of that hearing is also of record.  


REMAND

The veteran essentially contends that he is entitled to 
service connection for a psychiatric disorder, to include 
PTSD, which developed as a result of being sexually assaulted 
while on active duty in Korea.  The veteran maintains that, 
although he reported the incident, he was denied treatment; 
rather, he states that he was ridiculed and ostracized by 
fellow servicemen.  

At the time of his personal hearing in August 1996, the 
veteran indicated that he was currently being treated by a 
Dr. Gambroski, a rape specialist at the VA medical center in 
Fayetteville, North Carolina.  The veteran indicated that he 
was taking several medications, including Zoloft for 
depression associated with flashbacks, olfactory 
hallucinations and nightmares relating to his sexual assault 
in Korea.  The veteran testified that when he first reported 
the incident in service, his platoon leader told him that it 
was his fault; and, when he was subsequently sent to the Army 
121st Hospital in Seoul, the doctor told him that there was 
nothing to worry about.  The veteran reported that he tried 
to self medicate with beer and Benadryl.  

The Board notes that, among the veteran’s service department 
records is a psychiatric evaluation report by Aurora C. 
Ventenilla, M.D., dated in April 1993.  On this document, it 
is recorded that the veteran served in the United States Army 
with the Military Police from 1982 to 1988 and was stationed 
in Korea, where he was the subject of sexual molestation by 
some Korean servicemen.  Following a mental status 
evaluation, the pertinent diagnoses were adjustment disorder 
with mixed features of depression and anxiety, and possible 
PTSD from previous sexual trauma.  

The Board further notes that, received in December 1996 were 
VA medical reports from the VA Medical Center in Brecksville, 
Ohio, dated in August 1995, which reported a three year 
history of bipolar disorder and PTSD.  Moreover, while the 
hospital summary reported a final diagnosis only of bipolar 
disorder, the treatment notes reported diagnoses of bipolar 
disorder, mixed and PTSD.  

Received in September 1996 was a copy of a Sworn statement 
made by the veteran in May 1987, at which time he reported 
being sexually assaulted by 6 members of the Korean National 
Army while he was assigned to the 55th Military Police 
company in Monsan, Korea.  The veteran reported that while he 
was given a clean bill of health, the incident caused a lot 
of problems with his wife and the other soldiers in his unit.  

At his videoconference hearing in November 1997, the veteran 
again reiterated his account of the sexual assault by Korean 
soldiers while stationed at Nigin, Korea.  The veteran 
reported that he was shunned by his unit, and he was told by 
many people, including his commanding officer, they did not 
know how he could sleep at night when two people had been 
executed because of him.  The veteran’s brother testified 
that he learned of the incident through their mother, and 
that the veteran informed him of the incident himself; he 
indicated that he told the veteran to go through the chain of 
command and report what had happened.  The veteran indicated 
that when he reported the incident, he was told by many that 
if they were him, they would have blown their brains out at 
the back gate.  

Apparently received at the RO in November 1997, were copies 
of personnel investigation reports dated in 1987, that appear 
to have been prepared in connection with the veteran’s 
military assignments.  These documents contain information 
provided by various individuals, many of whom reported having 
been informed by the veteran that he (the veteran) was raped 
in Korea.  One document includes the veteran’s own 
recollection of the incident.  Still others indicated that it 
was their belief that the sexual activity described as taking 
place in Korea may have been consensual in nature.  These 
records, however, have not been considered by the RO and at 
the November 1997 hearing, the veteran indicated he did not 
wish to waive RO consideration of them.  Accordingly, the 
case must be returned to the RO for their review of this 
evidence, prior to the Board entering its decision.  

In addition to the foregoing, the Board notes that critical 
elements of a diagnosis of PTSD, most fundamentally those 
concerning the existence of a stressor or stressors, appear 
to have been based wholly upon statements of history provided 
to various examiners by the veteran.  The question of whether 
the veteran was exposed to a stressor in service is a factual 
determination, and VA adjudicators are not bound to accept 
such statements simply because treating medical providers 
have done so.  Wood v. Derwinski, 1 Vet. App. 190 (1991) 
(affirmed on reconsideration, 1 Vet. App. 406 (1991)); Wilson 
v. Derwinski, 2 Vet. App. 614 (1992).  

In the case of Zarycki v. Brown, 6 Vet. App. 91 (1993), the 
Court set forth the framework for establishing the presence 
of a recognizable stressor, which is the essential 
prerequisite to support the diagnosis of PTSD.  The Court's 
analysis divides into two major components: The first 
component involves the evidence required to demonstrate the 
existence of an alleged stressor event; the second involves a 
determination as to whether the stressful event is of the 
quality required to support the diagnosis of PTSD.  

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, 10 Vet. App. 128 (1997); 
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.  Regarding specific 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.  

Under the circumstances described above, it will be necessary 
to return this case to the RO to accomplish further 
development.  Accordingly, the case is REMANDED to the RO for 
the following actions:  

1.  The RO should ensure that all 
appropriate development has been 
accomplished in this case pursuant to the 
provisions of the VA Adjudication 
Procedure Manual M21-1, and in 
particular, the RO should contact all 
appropriate sources, to include the 
National Personnel Records Center, and 
attempt to obtain records of any 
treatment the veteran received at the 
121st Army Hospital in the Republic of 
Korea between February 1984 and April 
1984.  

2.  The RO should review the file and 
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.  

3.  The RO should obtain all the 
veteran’s VA medical records including 
those from the Outpatient Mental Health 
Clinics in Fayetteville, North Carolina 
and Brecksville, Ohio, which are not 
currently in the claims folder, and in 
particular, any of those dated in 1989, 
1990, and 1991.  

4.  After the preceding development has 
been accomplished, the veteran should be 
scheduled for a special psychiatric 
examination to determine the veteran’s 
psychiatric diagnoses, including whether 
he currently has PTSD.  If the veteran 
has PTSD, the examiner should specify the 
"stressors" that caused the disorder and 
the factual basis upon which he or she 
relied to establish the existence of 
them.  The examination report should 
reflect a review of pertinent material in 
the claims folder, and include the 
complete rationale for all opinions 
expressed.  All necessary special studies 
or tests, to include psychological 
testing should be accomplished.  The 
entire claims folder and a copy of this 
Remand must be made available to the 
examiner prior to the examination.  

5.  Upon completion of the above, the RO 
should review the evidence, and ensure 
that all of the foregoing development 
actions have been conducted and completed 
in full.  If any development is 
incomplete, including if any requested 
opinions are not provided, appropriate 
corrective action should be taken.  

6.  Thereafter, the RO should enter its 
determination as to whether service 
connection for a psychiatric disorder, 
including PTSD is warranted.  If the 
decision remains adverse to the veteran, 
both he and his representative should be 
furnished a supplemental statement of 
the case which summarizes the pertinent 
evidence, all applicable law and 
regulations, and reflects detailed 
reasons and bases for the decision.  
They should then be afforded the 
applicable time period in which to 
respond.  

After the above actions have been accomplished, the case 
should be returned to the Board for further appellate 
consideration, if otherwise in order.  No action is required 
of the veteran until he receives further notice.  

By this Remand the Board intimates no opinion, either legal 
or factual, as to the ultimate determination warranted in 
this case.  The purpose of this Remand is to further develop 
the record and to accord the veteran due process of law.  

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. 1997) (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.



		
	M. E. KILCOYNE
	Acting 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).


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