Citation Nr: 9909248 Decision Date: 03/31/99 Archive Date: 04/06/99 DOCKET NO. 94-19 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel REMAND The veteran had active service from March 1980 to March 1983. The veteran and his representative contend, in essence, that the veteran was assaulted and battered during service and developed post-traumatic stress disorder (PTSD) as a result of this incident. The Board of Veterans' Appeals (Board) remanded this matter in July 1996, in order to obtain verification of the alleged in-service trauma, but other than a personnel record which documented that the veteran was assigned to the USS BLUE RIDGE in 1981, no additional pertinent information was developed. One of the bases for the denial of the claim by the regional office (RO) has been the lack of verification of the alleged assault and battery. This is the starting point for any determination with regard to PTSD. Under the governing regulation, service connection for post-traumatic stress disorder requires that there must be credible supporting evidence that the claimed service stressor actually occurred. 38 C.F.R. § 3.304(f). Whether an event alleged as a "stressor" actually occurred, 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). The Board notes that there is now a medical diagnosis of PTSD based on an assumption that the alleged assault and battery actually occurred. For purposes of determining whether a claim is well grounded, lay evidentiary assertions as to a stressor must presumed to be credible. Thus, 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). Therefore, the Board finds that the Department of Veterans Affairs (VA) has a duty to assist in the development of facts pertinent to this claim. 38 U.S.C.A. § 5107(a). The duty to assist the veteran in obtaining and developing available facts and evidence to support his claim is neither optional nor discretionary. Littke v. Derwinski, 1 Vet. App. 90 (1990). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999, hereafter "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 Gober 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, the record reveals that there are still additional avenues open for obtaining verification of the alleged assault and battery 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. 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 fellow service members. This section of M21- 1 contains an exhibit entitled "Suggested Development Letter for PTSD Claims Based on Personal Trauma." The record in this case shows that the RO informed the veteran in a July 1998 supplemental statement of the case (SSOC) that the evidence of record had not verified the alleged assault and battery, however, that SSOC did not mention the types of collateral evidence now listed in the revised version of M21-1, Part III, 5.14c. Thus, the Board finds that considerations of both due process and substantive evidentiary matters require that the appellant and his representative 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 his representative are free to submit additional evidence or argument in support of the veteran's claim for benefits. 2. The RO should advise the appellant of the potential alternative or collateral sources listed in M21-1, Part III, 5.14c(5), for supporting evidence regarding the assault and battery he alleges occurred in service. The use of the exhibit in M21-1 entitled "Suggested Development Letter for PTSD Claims Based on Personal Trauma" is recommended. The veteran and his representative are advised that this information is vitally necessary to obtain supportive evidence of the alleged event and that he must be as specific as possible because without such details an adequate search for supporting information cannot be conducted. 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. 4. Upon completion of whatever development is feasible, the RO should review the appellant's claim. If the benefits sought on appeal remain denied, the appellant and his 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. 1998) (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. Gary L. Gick 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 Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999). 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). - 3 -