Citation Nr: 9812057 Decision Date: 04/17/98 Archive Date: 05/06/98 DOCKET NO. 96-44 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD) and depression, claimed as secondary to PTSD. 2. Entitlement to waiver of recoupment of Special Separation Benefit (SSB). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and [redacted] ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel INTRODUCTION The veteran had active service from January 1979 to November 1994. Initially, the Board of Veterans’ Appeals (Board) notes that it has determined that further development is warranted as to the veteran’s claim for service connection for PTSD and depression, claimed as secondary to PTSD. This issue will be addressed more fully in the Remand portion of this decision. The record reflects that a claim for direct service connection for depression has apparently been held in abeyance, pending the outcome of this appeal. This issue is therefore referred back to the regional office (RO) for further adjudication. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that her Department of Veterans Affairs (VA) disability compensation benefits should not be used to recoup the SSB payment because such payment was made for the purpose of voluntary separation, not on the basis of her disabilities. She further contends that recoupment should not apply because SSB was subject to taxation, whereas VA disability compensation benefits are nontaxable, and that she received less than the amount claimed as an SSB, because the remainder was withheld for taxation purposes. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran's appeal for relief from recoupment of his SSB from her VA disability compensation benefits is without legal merit. FINDINGS OF FACT 1. On her separation from service in November 1994, the veteran received an SSB in the amount of $52,924.50. 2. Effective in July 1995, the veteran became entitled to VA disability compensation benefits based on a combined 40 percent disability rating. CONCLUSION OF LAW VA disability compensation benefits are, as a matter of law, withheld to recoup the amount of SSB received. 10 U.S.C. §§ 1174, 1174a (West 1991 and Supp. 1997); 38 C.F.R. § 3.700(a) (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION A Special Separation Benefit (SSB) is a lump-sum benefit payable to service members who would otherwise face possible involuntary separation or denial of re-enlistment to voluntarily separate from service. The authorizing statute provides: A member who has received separation pay under this section . . . shall not be deprived, by reason of his receipt of such separation pay . . . of any disability compensation to which he is entitled under the laws administered by the [VA], but there shall be deducted from that disability compensation an amount equal to the total amount of separation pay . . . received. 10 U.S.C. §§ 1174, 1174a. The law clearly indicates that VA disability compensation benefits shall be offset to recoup the amount of SSB that a veteran receives, and that the gross amount of SSB must be recouped, not the amount remaining after tax withholding. Sabonis v. Brown, 6 Vet. App. 426 (1994); 38 C.F.R. § 3.700(a); VA O.G.C. Prec. Op. No. 67-91 (August 30, 1991); VA O.G.C. Prec. Op. No. 14-92 (June 22, 1992). The veteran's discharge certificate shows that on separation from service in November 1994 she received an SSB of $52,924.50. She has indicated that she actually received much less, because $15,000 was withheld for income tax purposes. In a July 1995 rating decision, service connection was granted for migraine headaches and lumbar strain with a combined rating of 40 percent, effective in December 1994. Although service connection was granted, the compensation payments have been withheld in order to recoup the amount of SSB received. At the veteran’s personal hearing in April 1997, the veteran testified primarily with respect to her claim for service connection for PTSD and depression, claimed as secondary to PTSD. The veteran contends that her VA compensation benefits should not be withheld to recoup the SSB because the SSB is not based on disability, as is VA compensation, and that offsetting the VA benefits to recoup the gross amount of SSB received is inequitable because VA compensation benefits are not subject to taxation. The law clearly shows, however, that VA compensation benefits are offset to recoup the gross amount of any SSB received. For these reasons the Board has determined that the veteran's appeal has no legal merit and it is, therefore, denied. See Sabonis, 6 Vet. App. at 430 (a claim should be denied where there is no entitlement under the law). ORDER The veteran's appeal for relief from recoupment of his SSB from her VA disability compensation benefits is denied. REMAND The veteran and her representative contend, in essence, that service connection for PTSD is warranted. More specifically, the veteran asserts that she developed PTSD as a result of being raped on two occasions in service, and she has also indicated that she was subjected to multiple sexual assaults by her former spouse during service. She further contends that she did not report the rapes because she was afraid and was humiliated by what had happened. She states that she now experiences flashbacks, nightmares, anger, depression, and problems with intimacy because of the sexual assaults. The veteran has given the name of the supervisor allegedly involved in the second incident in service, and has given the name of another service member who was reportedly assaulted by the same individual. The Board would also anticipate that the veteran may be able to provide the name and/or address of her former spouse, who may be a potential source of at least some information that would verify some of the veteran’s allegations. The Board notes that there is medical evidence of record which contains a diagnosis of PTSD, and to the extent this and the veteran’s contentions regarding supporting evidence of her alleged stressors makes this claim capable of substantiation, the veteran has submitted a well-grounded claim. In this regard, the VA has a duty to assist in the development of facts pertinent to her claim. 38 U.S.C.A. § 5107(a). The duty to assist the veteran in obtaining and developing available facts and evidence to support her claim includes obtaining an adequate VA examination. This duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet. App. 90 (1990). The fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The United States Court of Veterans Appeals (Court) has held that the duty to assist does not require the VA 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). The Board recognizes that the pursuit of this claim involves difficult matters for the appellant, however, there remain aspects of the record that require further development. Specifically, it appears that there are additional avenues open for obtaining verification of the alleged sexual assaults in service, and these avenues must be investigated. Regarding noncombat stressors, the 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 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. 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 family members and fellow service members. The record in this case shows that the RO requested direct and, to some extent, collateral evidence of a personal assault from the appellant by letter in June 1996, however, that correspondence did not mention all of the types of collateral evidence now listed in M21-1, part III, 5.14c. Thus, it appears to the Board that considerations of both due process and substantive evidentiary matters require that the appellant be properly informed of all of the types of collateral evidence now mentioned in M21-1, part III, 5.14c. In addition, the Board notes that in the past, the veteran has apparently been in receipt of Social Security Administration (SSA) disability benefits, and all of the records associated with this claim are not of record. The Court has held that the duty to assist requires that the VA obtain all relevant facts, not just those for or against the claim, and that where the records are in the possession of the Federal Government, VA is responsible for securing the material. Murphy, 1 Vet. App. at 82. In the alternative, if there was in fact no SSA award or no records, this also should be documented in the record. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, to ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is remanded to the RO for the following development: 1. The veteran should be asked to identify any sources of recent pertinent medical treatment for any psychiatric disorder. After obtaining any necessary authorization, the RO should obtain any medical records other than those now on file pertaining to any psychiatric disorder and associate them with the claims folder. 2. The RO should contact SSA and request a copy of any decision on the merits of the claim and copies of any medical records reviewed in reaching that determination. If the SSA has made no decision or has no records, this should be documented in the record. The attention of the SSA should be invited to 38 U.S.C.A. § 5106 (West 1991 & Supp. 1997). 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 she alleges occurred in service. The RO inquiry should include all the possible collateral sources listed in M21-1, part III, 5.14c(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 supporting information cannot be conducted. Of particular significance is any information that would assist in locating her former supervisor, former spouse, or the service member who was allegedly assaulted by the same supervisor. 4. 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. 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) (1997), 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. 5. 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 her to determine the correct diagnosis of any psychiatric disorder present and to determine whether the diagnostic criteria for PTSD are satisfied. All indicated studies must be conducted. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. 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 her 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)). If the physician can not answer any of the above questions without resort to speculation, he or she should so indicate. The physician should provide the rationale for the opinions provided. The veteran is advised that failure to report for the scheduled examination may have adverse consequences to her claim as the information requested on this examination addresses questions of causation and symptomatology that are vital in these claims. 38 C.F.R. § 3.655 (1997); Connolly v. Derwinski, 1 Vet. App. 566 (1991). 6. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed in its entirety. In particular, the RO should ensure that the requested opinions are in compliance with this remand and if they are not, the RO should implement corrective procedures. 7. After the completion of any development deemed appropriate in addition to that requested above, the RO should readjudicate the issue of entitlement to service connection for PTSD and depression, claimed as secondary to PTSD. 8. Thereafter, the RO should again review the record. If the benefits sought on appeal remain denied, the appellant and her representative should be furnished a supplemental statement of the case, and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome as to this issue. The appellant need take no action until otherwise notified. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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, Veterans’ Benefits Administration (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. Richard B. Frank Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a 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) (1997). - 2 -