Citation Nr: 9831343	
Decision Date: 10/22/98    Archive Date: 10/26/98

DOCKET NO.  94-38 101	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama


THE ISSUE

Entitlement to service connection for Post-Traumatic Stress 
Disorder (PTSD).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARINGS ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L.J. Bakke, Associate Counsel

INTRODUCTION

The veteran served on active duty from February 1972 to March 
1976.

The Board notes that the veteran filed a VA Form 21-527 in 
December 1993.  He also testified, in his April 1994 hearing 
before a hearing officer at the RO, that he is unable to 
obtain and maintain gainful employment because of his 
psychiatric disability.  In addition, the June 1994 VA 
examination report reveals that the veteran reported that he 
sustained an injury to his back, the residuals of which 
continue to cause pain and to cause swelling and cramping in 
his legs.  A claim for non-service connected pension under 38 
U.S.C.A. § 1521 (West 1991) and 38 C.F.R. §§ 3.3 and 3.342 
(1996) is referred to the RO for appropriate action.


REMAND

The Board has reviewed the records and finds that additional 
development is necessary before appellate action may be 
completed.

First, the Board notes that the evidentiary record contains 
evidence that does not appear to have been reviewed by the 
RO.  The veteran testified, in April 1994, before a hearing 
officer at the local RO.  In addition, the file now contains, 
inter alia, an initial psychiatric evaluation from the State 
of New Hampshire, Department of Health and Human Services, 
treatment records from VA medical centers (VAMCs), and the 
June 1994 VA examination report.  The record before the Board 
does not contain any rating decision, hearing officer 
decision, or supplemenmtal statement of the case after the 
April 1994 hearing.  “Any pertinent evidence submitted by 
the appellant or representative … as well as any such 
evidence referred to the Board by the originating agency … 
must be referred to the agency of original jurisdiction for 
review and preparation of a supplemental statement of the 
case unless this procedural right is waived by the appellant 
or representative or unless the Board determines that the 
benefit, or benefits, to which the evidence relates may be 
allowed on appeal without such referral.”  38 C.F.R. 
§ 20.1304(c) (1998).  See Thurber v. Brown, 5 Vet. App. 119, 
126 (1993).  The subject evidence is pertinent because it 
concerns the veteran's current psychiatric disorder and his 
testimony with regard to his inservice stressor.  The record 
does not reveal that the veteran has waived his right to have 
the RO first consider this evidence.

Second, the Board notes that the veteran testified in his 
April 1994 hearing as to the existence of a stressor—which 
he identified as inservice sexual assault and rape.  He has 
further provided written information detailing this 
experience.  The RO has made some attempts to verify his 
claimed stressor, but followup action is needed.

Service connection for PTSD requires (1) medical evidence 
establishing a clear diagnosis of the condition, (2) credible 
supporting evidence that the claimed inservice stressor 
actually occurred, and (3) a link, or nexus, established by 
medical evidence, between the current symptomatology and the 
claimed inservice stressor.  38 C.F.R. § 3.304(f) (1998).  
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 inservice stressor consist solely 
of after-the-fact medical nexus evidence.  See Cohen, at 128; 
Moreau v. Brown, 9 Vet. App. 389 (1996); and Disoglio 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.  For 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.  

Third, the Board notes that the evidentiary record shows the 
RO did attempt to obtain the veteran’s service personnel 
records and a record of any police report of the inservice 
sexual assault.  However, the evidentiary record also shows 
that, with regard to the former, the National Personnel 
Records Center (NPRC) requested in December 1994 that the RO 
re-submit its request in 60 days, as the veteran’s record was 
then out of the center for the purposes of responding to an 
earlier request for information.  With regard to the latter, 
the evidentiary record shows that the a July 1995 letter was 
received from the Brunswick Police Department in which more 
details of the sexual assault were requested.  The 
evidentiary record does not show that the RO followed-up in 
either of these requests for information.

Fourth, the Board notes that the evidentiary record shows the 
RO did attempt to obtain additional records concerning the 
veteran directly from Commander, Naval Hospital, Glynco, 
Georgia.  A response to this request from the Personnel 
Officer, Department of the Treasury, Law Enforcement Training 
Center, Glynco, Georgia, dated in September 1994, is of 
record.  The Personnel Officer advises the RO that Naval Air 
Station Glynco, Georgia, was closed in 1975 and that the Law 
Enforcement Training Center is now located on the premises.  
However, the evidentiary file does not show that the RO 
attempted to obtain these records through alternative 
sources.

To ensure that the VA has met its duty to assist the veteran 
in developing the facts pertinent to this claim and to ensure 
full compliance with due process requirements, this case is 
REMANDED to the RO for the following actions:

1.  The RO should obtain copies of 
performance evaluations for the veteran 
during his active service.

2.  The RO should make a specific attempt 
to obtain any additional service medical 
records, including any and all mental 
hygiene records, and service personnel 
records in existence under the veteran’s 
service number, including proceedings of 
any disciplinary actions.  The RO is 
further requested to make a specific 
attempt to obtain any service personnel 
records concerning his schooling while at 
“A” school at NATTC, Glynco, Georgia.  
In particular, the RO is requested to 
obtain specific records concerning his 
failure to complete this school for 
academic reasons and any and all records 
concerning his transfer therefrom to the 
U.S.S. Milwaukee.  

3.  If the service medical records, 
mental hygiene records, or service 
personnel records are unavailable, the RO 
should use alternative sources to obtain 
such records, using the information of 
record and any additional information the 
veteran may provide.  If necessary, the 
RO should request that the veteran 
augment the information that he has 
already provided.

4.  If the service medical records, 
mental hygiene records, or service 
personnel records are unavailable, the RO 
should also consider special follow-up by 
its military records specialist and/or 
referral of the case to the Adjudication 
Officer or designee for a formal finding 
on the unavailability of the service 
medical records.  See VBA’s ADJUDICATION 
PROCEDURE MANUAL, M21-1, Part III, 
chapter 4, paras. 4.28 and 4.29.  

5.  The RO should request that the 
veteran provide specific information 
concerning the averred inservice sexual 
assault and rape.  In particular, the 
veteran should be asked to identify as 
accurately as he can the date, time, and 
place of the occurrence, the police 
jurisdiction in which he reported the 
crime, and, if possible, the names of the 
police officers to whom he spoke, and the 
case number given to his report.  In 
addition, the RO should request from the 
veteran a comprehensive statement of 
potential alternative sources for 
supporting evidence regarding the averred 
sexual assault and rape.  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 
he must be as specific as possible 
because, without such details, an 
adequate search for verifying information 
cannot be conducted.

6.  The RO should request any supporting 
evidence from alternative sources 
identified by the veteran.  These sources 
should include, but not be limited to, 
any police jurisdictions that have been 
identified by the veteran or that may be 
gleaned from a review of the claims file.  
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.

7.  The RO should afford the veteran an 
opportunity to procure lay statements 
from persons to whom he may have confided 
the incident which he identifies as 
stressors, or who may have witnessed any 
change in his academic performance or 
behavior while inservice.

8.  After receipt of any and all newly 
acquired evidence, the RO should again 
review the veteran’s claim for service 
connection for PTSD.  If the decision 
remains in any way adverse to the 
veteran, he and his representative should 
be furnished with a supplemental 
statement of the case, and with a 
reasonable period of time within which to 
respond.

The case should thereafter be returned to the Board for 
further review, as appropriate.  The veteran need take no 
action until he is so informed.  He may present additional 
evidence or argument while the case is in remand status at 
the RO.  Cf. Quarles v. Derwinski, 3 Vet. App. 129, 141 
(1992).  The Board intimates no opinion as to the ultimate 
outcome of this case.

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. 1998) (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.



		
	MARY GALLAGHER
	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).
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