Citation Nr: 9832803	
Decision Date: 11/04/98    Archive Date: 11/17/98

DOCKET NO.  97-14 383	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Entitlement to service connection for post-traumatic stress 
disorder.  


ATTORNEY FOR THE BOARD

W. Yates, Associate Counsel


INTRODUCTION

The appellant served on active duty from August 1995 to 
February 1996.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a November 1996 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Cleveland, Ohio.  That rating decision, in pertinent part, 
denied the appellant’s claim for service connection for post-
traumatic stress disorder (PTSD).  The appellant’s claims 
file was subsequently transferred to the RO in St. 
Petersburg, Florida, pursuant to her change in residence. 

The Board notes that the veteran has pursued this appeal 
without the assistance of a representative.  While the 
veteran is free to proceed in this manner, the Board reminds 
her that assistance, and representation, is available from 
any number of accredited veterans’ service organizations and 
her state’s veterans’ department.


REMAND

The appellant contends, in essence, that she is entitled to 
service connection for PTSD.  Specifically, the appellant 
alleges that while on active duty at Travis, A.F.B., 
California, in October 1995, she was “sexually assaulted, 
robbed, and possibly raped.”

Service connection may be granted for a disability resulting 
from disease or injury incurred in or aggravated by active 
military service. 38 U.S.C.A. §§ 101(16), 1110 (West 1991).

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, established by medical 
evidence, between current symptomatology and the claimed 
inservice stressor.  38 C.F.R. § 3.304(f) (1998); see also VA 
ADJUDICATION PROCEDURE MANUAL M21-1 (MANUAL M21-1), Part VI, 
11.38 (Aug. 26, 1996) (reiterating the three PTSD service-
connection requirements set forth in regulation § 3.304(f) 
and specifically requiring “credible supporting evidence 
that the claimed inservice stressor actually occurred”).  
The MANUAL M21-1 provisions in paragraph 11.38 are 
substantive rules which are “the equivalent of [VA] 
[r]egulations”.  See Hayes v. Brown, 5 Vet. App. 60, 67 
(1993) (citing Karnas v. Derwinski, 1 Vet. App. 308, 313 
(1991)). 

The regulations governing service connection for PTSD differ 
from those governing service connection for other conditions 
because they require evidence of an inservice stressor rather 
than evidence of “incurrence or aggravation” of a disease 
or injury in service or within a post-service presumptive 
period.  The case law allows a physician’s opinion of causal 
nexus, in certain circumstances, to establish inservice or 
presumptive-period incurrence or aggravation, even when the 
examination on which the opinion was based was made many 
years after service.  See e.g., ZN v. Brown, 6 Vet. App. 183 
(1994).  However, because the requirements in § 3.304(f), 
including a “link, established by medical evidence, between 
current symptomatology and the claimed inservice stressor” 
and “credible supporting evidence that the claimed inservice 
stressor actually occurred,” indicate that something more 
than medical nexus is required, the Court held in Moreau, 
that “credible supporting evidence of the actual occurrence 
of an inservice stressor cannot consist solely of after-the-
fact medical nexus evidence.”

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 be 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).

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.

After a thorough review of the veteran’s claims file, the 
Board finds that 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 
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 
record in this case shows that the correspondence from the RO 
did not mention all of the types of collateral evidence now 
listed in the revised version of M21-1, part III, 5.14(c).  
Thus, 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, 5.14(c).

The United States Court of Veterans Appeals (Court) has also 
held that, when the medical evidence is inadequate, VA must 
supplement the record by seeking an advisory opinion or 
ordering another medical examination. Halstead v. Derwinski, 
3 Vet. App. 213 (1992) and Colvin v. Derwinski, 1 Vet. App. 
171 (1991).   

After reviewing the veteran’s claims file, the Board 
concludes that an additional medical examination of the 
veteran is necessary to make an informed determination 

in this matter.  The report of VA special psychological 
evaluation, dated December 1997, noted the following 
findings:

The veteran’s history, presentation on 
interview, and testing, are not 
indicative of post-traumatic stress 
disorder.  A fundamental problem with the 
veteran’s claim for post-traumatic stress 
disorder is that her stressor statement 
which is vague leaves many unanswered 
questions.  While the veteran refers to 
the rape, which she does believe happened 
in 1995, upon examination no such assault 
is actually recalled by the veteran.  She 
assumes a rape may have happen while she 
was ‘passed out.’  The veteran does 
endorse PTSD symptoms on a self-report 
instrument, but given that more subtle 
testing does not support the diagnosis of 
PTSD, the Impact of Event Scale scores do 
not stand alone.  It is possible that 
this very distressed woman is seeking to 
explain her symptoms and extreme 
emotional difficulties, particularly 
related to her hospitalization at Travis 
Air Force Base, by claiming to have post-
traumatic stress disorder.  Finally, the 
veteran does not meet the DSM-IV criteria 
in addition to the vague traumatic event 
for PTSD.  The veteran is not found to 
suffer disability from post-traumatic 
stress disorder incurred during her 
military service.

The report concluded with a diagnosis of bipolar disorder.  A 
subsequent VA examination, performed in January 1998, noted, 
upon review of the December 1997 examination, that the 
“findings were consistent with post traumatic stress 
disorder.  I did not see any rationale for the diagnosis of 
bipolar disorder.”  Thus, clarification of the veteran’s 
current psychiatric status is needed to make an informed 
decision in this matter.  

Accordingly, if after the development indicated herein, the 
RO concludes that the record establishes the existence of 
such a stressor or stressors, then and only then, the case 
should be referred for a medical examination to determine: 
(1) the sufficiency of the stressor; (2) whether the 
remaining elements required to support the diagnosis of PTSD 
have been met; and (3) whether there is a link between a 
currently diagnosed PTSD and a recognized stressor or 
stressors in service.  38 C.F.R. § 3.304(f) (1998).

In light of the foregoing, and recognizing the VA's duty to 
assist the appellant in the development of facts pertinent to 
her claim under the provisions of 38 U.S.C.A. § 5107(a) (West 
1991) and 38 C.F.R. § 3.103(a) (1998), the case should be 
remanded to the RO for the following actions:

1.  The RO should request from the 
veteran a comprehensive statement of 
potential alternative sources for 
supporting evidence regarding the alleged 
October 1995 rape.  The RO’s 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.  The veteran should be told 
that the information is necessary to 
obtain supportive evidence of the 
stressful events and that failure to 
respond may result in adverse action.

2.  The RO should attempt to secure any 
additional service medical records and 
the official service personnel file that 
may exist pertaining to this veteran from 
the service department or the appropriate 
depository of records. 

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), 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 
inservice 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 (1998), 
the claims file must be made available to 
and reviewed by the examiners prior and 
at all times pertinent to the 
examination.

6.  Following completion of the above 
actions, the RO must review the claims 
folder and ensure that all of the 
foregoing development has been conducted 
and completed in full.  If any 
development is incomplete, appropriate 
corrective action is to be implemented.  
Specific attention is directed to the 
supplemental examination report.  If the 
examination report does not include fully 
detailed descriptions of pathology and 
all test reports, special studies or 
adequate responses to the specific 
opinions requested, the report must be 
returned for corrective action.  38 
C.F.R. § 4.2 (1998) ("if the 
[examination] report does not contain 
sufficient detail, it is incumbent upon 
the rating board to return the report as 
inadequate for evaluation purposes."). 
Ardison v. Brown, 6 Vet. App. 405, 407 
(1994); Abernathy v. Principi, 3 Vet. 
App. 461, 464 (1992); and Green v. 
Derwinski, 1 Vet. App. 121, 124 (1991).

7.  Subsequently, the RO should 
readjudicate the issue on appeal.

Following completion of these actions and, if the decision 
remains unfavorable, the veteran and his representative 
should be provided with a supplemental statement of the case 
and afforded a reasonable period of time in which to respond.  
Thereafter, in accordance with the current appellate 
procedures, the case should be returned to the Board for 
completion of appellate review.

The purpose of this REMAND is to obtain additional medical 
evidence and to ensure that the appellant is afforded due 
process of law.  No opinion, either legal or factual, is 
intimated as to the merits of the appellant's claim by this 
REMAND.  The veteran is not required to undertake any 
additional action until he receives further notification from 
VA.

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.



		
	BETTINA S. CALLAWAY
	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) 
(1998).



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