Citation Nr: 9814744 Decision Date: 05/12/98 Archive Date: 05/27/98 DOCKET NO. 97-02 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: James W. Stanley, Jr., Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel REMAND Background The veteran had active service from March 1969 to May 1970. The veteran and her attorney contend, in essence, that she developed PTSD as a result of being raped during service. She further contends that she did not report the rape because she did not believe it would do any good. She states that she now experiences various symptoms because of the sexual assault. Following the initial unsuccessful efforts to obtain verification of the alleged in service trauma, the appellant’s attorney in a May 1997 submission stated that “[the appellant] can never verify such stressors so further efforts will be fruitless.” (emphasis in the original). The attorney further maintains that the claim should not be controlled by 38 C.F.R. § 3.304(f) (1997), but can be granted under the provisions of 38 C.F.R. § 3.304(d) (1997). In essence, he apparently argues that the evidentiary assertions of the appellant, coupled to the diagnosis by the medical professionals linking a PTSD to an event or events in service as reported by the claimant, should be sufficient to provide a legal and factual basis to grant the claim. As part of this argument, he apparently asserts that 38 C.F.R. § 3.304(f), and the case law arising from that regulation, can not be deemed to have fully defined the range of proofs that can be advanced to support a claim for service connection for this disorder, particularly as to what proofs are required for an alleged “stressor.” Analysis The basis for the denial of the claim by the RO is the absence of a verified stressor. This is the starting point for any determination with regard to PTSD. Under the controlling regulation, “Service connection for post- traumatic stress disorder requires” that there must be “credible supporting evidence that the claimed service stressor actually occurred.” (emphasis added) 38 C.F.R. § 3.304(f). The existence of a an event alleged as a “stressor” that results in PTSD, though not the adequacy of the alleged event to cause PTSD, is an adjudicative, not a medical determination. Zarycki v. Brown, 6 Vet. App. 91 (1993). “Conclusive Evidence” (Presumptive Corroboration) of an Alleged Combat Stressor Under the framework established in Zarycki, adjudicators and the Board must make an explicit determination as to whether the appellant “engaged in combat with the enemy.” This in turn requires as a preliminary matter examination of whether the record already contains “conclusive evidence” that he or she “engaged in combat with the enemy.” By rule making, the VA has set forward criteria of “conclusive evidence” to establish a combat related stressor, as well as rape or assault. These criteria are defined as: (a) a claim that the stressor is related to combat and (b) a demonstration in the record that the claimant (“in the absence of evidence to the contrary”) has been awarded certain specific recognized awards or decorations identified in 38 C.F.R. § 3.304(f) or VA ADJUDICATION MANUAL M21-1, Part VI, 7.46 (effective Oct. 11. 1995). The Board notes the revised version of this Manual M21-1 provision (Part VI, 11.37 (effective Feb. 13, 1997) did not alter the list of awards or decorations. These include certain awards specifically denoting combat participation (the Combat Infantryman Badge and the Combat Action Ribbon), a decoration awarded for combat incurred wounds (the Purple Heart Medal), and certain decorations that are awarded only for valor in combat with the enemy. In addition to the criteria based upon certain awards or decorations, “conclusive evidence” may also be established by “other supportive evidence” that the claimant was a prisoner of war under the requirements of 38 C.F.R. § 3.1(y), or evidence that the claimant was in a plane crash, ship sinking, explosion, rape or assault, or duty on a burn ward or in a graves registration unit. The Board finds the term “other supportive evidence” is unclear as to the limitations, if any, on what can constitute “other supportive evidence.” At a minimum, as is discussed below, the case law from the Court would preclude the use of the claimant’s own assertions as “other supporting evidence,” nor would post-service medical evidence suffice as “other supporting evidence.” To the extent that the term “other supporting evidence” in this context could be service department records, the Board finds that there are no service department medical or administrative records now in the file to establish that the claimant was a prisoner of war under the requirements of 38 C.F.R. § 3.1(y), or she was in a plane crash, ship sinking, explosion, rape or assault, or duty on a burn ward or in a graves registration unit. It is not alleged that appellant “engaged in combat with the enemy,” and the Board finds that the record does not contain “conclusive evidence” that she “engaged in combat with the enemy.” The Board further finds that on the current record no proofs have been advanced that constitute “conclusive evidence” that she experienced a rape or assault, and is therefore entitled to have her lay statements accepted without need of further corroboration. To the extent that “other supportive evidence” could be other than service department records to establish any of the events listed under “conclusive evidence,” this matter is addressed further below. “Credible Supporting Evidence” of a Claimed “Stressor” Where the record does not reflect “conclusive evidence” that the claimant “engaged in combat with the enemy” under 38 U.S.C.A. § 1154(b), his or her assertions, standing alone, can not as a matter of law provide evidence to establish that the claimant “engaged in combat with the enemy” or that an event claimed as a stressor occurred. Dizoglio, 9 Vet. App. 163 (1996). Furthermore, as a matter of law, “credible supporting evidence that the claimed in[-]service event actually occurred” can not be provided by medical opinion based on post-service examination. Moreau, 9 Vet. App. 394- 96. It is the obligation of the claimant to advance “credible supporting evidence from any source” that the event alleged as the stressor in service occurred. Cohen, 10 Vet. App. at 147. In light of this case law, the Board can not concur with the argument of the attorney that 38 C.F.R. § 3.304(d) eases the requirements set out in Dizoglio, Moreau or Cohen, or provides an alternative avenue of proofs of a stressor. Thus, the analysis of stressor verification is not so much bisected by whether the event is “combat” or “noncombat,” but whether there is “conclusive evidence” of a combat stressor (or an alleged rape of assault), or “credible supporting evidence from any source” of a combat or noncombat stressor. The Board notes that there is medical evidence of record that contains a diagnosis of PTSD, linking that disorder to an event reported by the claimant to have occurred in service. For purposes of determining whether a claim is well grounded, lay evidentiary assertions must presumed to be credible. Thus, under the current law and case law, this claim must be regarded as “well grounded.” 38 U.S.C.A. § 5107(a); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board further notes that no presumption of credibility attaches to a review on the merits of the claimant’s evidentiary assertions. King v. Brown, 5 Vet. App. 19, 21 (1993). Notwithstanding the proffer by the appellant’s attorney that she can “never” provide verification of the alleged in service stressor, the Board finds that the Department of Veterans Affairs (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 is neither optional nor discretionary. Littke v. Derwinski, 1 Vet. App. 90(1990). The Court also has held, however, 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 assault in service, and these avenues must be investigated. 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. The proffer by the attorney that the appellant can “never” provide corroboration can not be accepted before the appellant and her counsel have been apprised of these alternative sources. The record in this case shows that the regional office (RO) requested evidence of a personal assault from the appellant by letter in March 1996, however, that correspondence did not mention all of the types of collateral evidence now listed in the revised version of 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 and her counsel be properly informed of all of the types of collateral evidence now mentioned in M21-1, part III, 5.14c. 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 appellant and her attorney are free to submit additional evidence or argument in support of her claim for benefits. 2. The RO should advise the appellant of the potential alternative or collateral sources for supporting evidence regarding the stressor she alleges occurred in service listed in M21-1, part III, 5.14c(5). The veteran and her attorney are advised that this information is vitally necessary to obtain supportive evidence of the alleged 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 roommate and/or the fellow service members that she worked with at the time of the alleged incident. 3. Thereafter, the RO should take appropriate action to request any supporting evidence from alternative sources identified by the veteran. The Board again must emphasize that the ability of the VA to assist in this matter is directly dependent upon the actions of the claimant in providing evidence or in identifying specifically where such alternative or collateral evidence may be obtained. 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. Upon completion of whatever development is feasible, the RO should review the file and enter a determination, in accordance with the provisions of 38 C.F.R. § 3.304(f) and the controlling case law, as 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. The RO should also determine whether the record shows that the appellant was exposed to any events before or after service of a traumatic nature. In reaching these determinations, the RO should address any credibility questions raised by the record. 5. If and only if the RO determines that there is credible supporting evidence that at least one claimed stressor actually occurred in service, 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, as opposed to any other traumatic event before or after service. For purposes of determining whether PTSD due to service is present, the examiner may only consider an alleged stressor event that the RO has found to be verified by credible supporting evidence. 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, if required, 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. 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 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) (1997). - 2 -