Citation NR: 9800007 Decision Date: 01/02/98 Archive Date: 01/13/98 DOCKET NO. 94-25 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michelle E. Jensen, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from an August 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO), which denied the benefit sought on appeal. The veteran, who had active service from September 1968 to June 1971 and unverified periods of active duty for training from 1976 to 1982, appealed that decision to the BVA. In March 1997, a hearing was held before the undersigned Board Member at the RO. The case has since been referred to the Board for appellate further review. REMAND 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 current symptomatology and the claimed in- service stressor. 38 C.F.R. § 3.304(f) (1996). Regarding non-combat stressors, the United States Court of Veterans Appeals (Court) has held that “credible supporting evidence” means that the veteran’s testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat 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); and Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The VA Adjudication Manual M21-1 (M21-1) provides that the required “credible supporting evidence” of a non- combat stressor “may be obtained from” service records or “other sources.” M21-1, part VI, formerly 7.46. Specific claims based upon personal assault, M21-1, part III, 5.14(c), 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. A preliminary review of the claims folder indicates that the veteran was diagnosed with PTSD during a February 1993 VA examination. However, as noted above, in order for a diagnosis of PTSD to be accepted for service connection purposes, the diagnosis must be based upon a recognizable stressor. See Swann v. Brown, 5 Vet.App. 229, 233 (1993). The record reveals that the veteran has described a number of in-service stressors in statements submitted to the RO and in testimony both before the RO in March 1994 and before the undersigned Member of the Board during a hearing at the RO in March 1997. These stressors consist of a personal attack in 1971, ongoing sexual harassment, and a rape in 1981. The Board notes that the RO has attempted to obtain documentation of the veteran’s ongoing sexual harassment and her reported personal attack in 1971. However, the record does not reflect that the RO has made any attempt to verify the alleged rape by an Inspector General investigator that took place in 1981. Furthermore, the record indicates that the veteran has had various psychiatric diagnoses in addition to PTSD, to include adjustment disorder with depressed mood and a personality disorder, not otherwise specified. Moreover, it is not clear as to what stressor(s) were relied upon in making the February 1993 diagnosis of PTSD and whether that diagnosis may be supportable solely by the personal attack in 1971, a verified stressor under the provisions of M21-1, part III, 5.14(c). In this regard, the Board notes that although the RO has been unable to obtain official documentation regarding the 1971 personal attack, the claims file contains two statements from [redacted], a former Army officer, which indicated that the veteran called him immediately following this attack. Although Mr. [redacted] did not witness the attack, he recalled that the veteran was “hysterical” when she called him and he noted red marks on the veteran’s arms where she said she had been forcibly grabbed. In light of the various and disparate psychiatric diagnoses, the Board finds that further development, to include examination by a Board of two psychiatrists and procurement of a well-supported, well-reasoned opinion as to whether the veteran, in fact, has PTSD, which may be attributed solely to verified in-service stressors, is necessary. Therefore, in order to give the veteran every consideration with respect to the present appeal, the Board finds that further development of the case is necessary. Accordingly, this case is REMANDED for the following action: 1. The RO should contact the National Personnel Records Center and request that it provide copies of performance evaluations for the veteran during her active service. 2. The RO should request from the veteran a comprehensive statement of potential alternative sources for supporting evidence regarding the alleged 1981 rape by an employee of the Inspector General’s office. The RO inquiry should include possible sources listed in M21-1, part III, 5.14(c)(5). The veteran should be advised that this information is vitally necessary to obtain supportive evidence of the stressful event and that she must be as specific as possible because without such details an adequate search for verifying information cannot be conducted. 3. Thereafter, the RO should request any supporting evidence from alternative sources identified by the veteran. 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. 4. The RO then 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, 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. 5. After the foregoing development has been completed to the extent possible, the RO should arrange for the veteran to undergo a VA psychiatric examination by a board of two psychiatrists (preferably, who have not previously examined the veteran, if possible), to determine the nature and extent of any and all psychiatric disorders which may be present. The veteran must be advised of the consequences of failing to report for the examination. A single, collaborative opinion, if possible, is requested. The examiners must consider the diagnostic criteria of the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). All indicated studies, tests and evaluations deemed necessary should be performed, but should include psychological testing, including PTSD sub scales. The RO must provide to the examiners the summary of any stressors described above, and the examiners must be instructed that only these events may be considered for the purpose of determining whether exposure to an in- service stressor has resulted in the current psychiatric symptoms. The examiners must also determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiners should comment upon the link between the current symptomatology and one or more of the in- service stressors found to be established by the RO. The examiners should be asked to comment on the significance of any evidence that is indicative of behavioral changes (see M21-1, part III, 5.14(c)). Similarly, if a diagnosis of PTSD is rejected, the examiners should clearly explain why. If more than one diagnosis is rendered, the examiners should distinguish, to the extent possible, symptomatology attributable to each; assign a Global Assessment of Functioning Scale score for each disorder diagnosed; and explain what each score represents. The report of examination should include the complete rationale for all opinions expressed. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (1996), the claims file must be made available to and reviewed by the examiners prior and at all times pertinent to the examination. 6. After undertaking any development deemed appropriate in addition to that specified above, the RO should review the examination report. If in complete compliance with the instructions provided above, appropriate action should be taken. Specifically, the RO should note whether a diagnosis of PTSD was based on an unverified stressor or history. Under the provisions of West v. Brown, 7 Vet.App. 70, 77 (1994), such an examination is inadequate. 7. Thereafter, the RO should adjudicate the issue of service connection for PTSD in light of all pertinent evidence and all applicable laws, regulations, and case law, including Cohen v. Brown, 10 Vet.App. 128 (1997). 8. If any determination remains unfavorable to the veteran, the RO should furnish the veteran and her representative a supplemental statement of the case and provide an opportunity for the veteran and her representative to respond before the case is returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence she desires to have considered in connection with her current appeal. No action is required of the veteran until she is notified. This REMAND 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. JACQUELINE E. MONROE 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 -