Citation Nr: 9916663 Decision Date: 06/16/99 Archive Date: 06/21/99 DOCKET NO. 96-42 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD) with memory loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. McGovern, Associate Counsel INTRODUCTION The veteran had active service from July 1977 to December 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the October 1995 rating decision of the Honolulu, Hawaii Department of Veterans Affairs (VA) Regional Office (RO), which determined that the claim for service connection for PTSD and memory loss was not well grounded. The veteran subsequently moved to Texas and the Houston, Texas RO now has jurisdiction. By rating decision dated in October 1985, VA denied entitlement to service connection for a personality disorder with affective disorder. In the letter notifying the veteran of this rating decision, the RO stated that service connection for a neurosis had been denied. The veteran filed a timely notice of disagreement with the denial of service connection for neurosis and the RO issued a statement of the case in November 1986. However, as the veteran did not submit a substantive appeal, the October 1985 rating decision became final. See 38 U.S.C.A. § 7105 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1998). Ordinarily finally denied claims may not be reopened without the submission of new and material evidence. 38 U.S.C.A. § 5108 (west 1991); 38 C.F.R. § 3.156 (1998). In this case, the RO appears to have adjudicated the veteran's claim on a de novo basis without consideration of the finality of the October 1985 decision. Because PTSD had not been diagnosed at that time and entitlement to service connection for PTSD was not considered in the October 1985 rating decision, the Board agrees that the current claim for service connection for PTSD with memory loss is a new claim and may be addressed on a de novo basis. In an April 1999 statement, the veteran asserted that she underwent a mammoplasty in service and that she should therefore receive compensation for residuals of the mammoplasty. This matter has not been addressed by the RO and it is referred to the RO for appropriate action. FINDING OF FACT The evidence of record includes the veteran's statements as to stressful events in service and psychological reports which contain current diagnoses of PTSD which are related to the veteran's service. CONCLUSION OF LAW The veteran's claim for service connection for PTSD with memory loss is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Relevant law and regulations Service connection Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered, or disease contracted, in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1998). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1998). Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. 38 C.F.R. § 3.304(f) (1998); Cohen v. Brown, 10 Vet. App. 128 (1997). Well grounded claims The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet. App. at 81. An allegation that a disorder is service connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability in the form of a medical diagnosis, of incurrence or aggravation of a disease or injury in service in the form of lay or medical evidence, and of a nexus between the in-service injury or disease and the current disability in the form of medical evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). Factual background The veteran essentially contends that she has PTSD with memory loss which is related to traumatic experiences in service. The service medical records show that, at her August 1984 separation examination, the veteran reported that she had had frequent trouble sleeping. However, she also reported that she had never had depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. The examiner indicated that clinical psychiatric evaluation was normal. Treatment records, statements from the veteran, and the veteran's personal hearing testimony show that over the years she has reported several in-service events which, she argues, are the foundation of her current PTSD. The reported stressors include: (1) being "date raped" and beaten by a man in his barracks sometime between 1980 and 1984 at Barbers Point Naval Air Station [the veteran claims amnesia as part of her claimed PTSD]; (2) frequent sexual harassment including unwelcome touching, sexually offensive language, and references to female body parts; (3) being groped and driven into remote fields on the way to lunch by two supervisors who suggested that she would be put in her place; (4) an incident when, in the presence of her supervisor, a man touched her breasts and she then chased him with scissors and was told by her supervisor that she would have to learn to live with sexual harassment; (5) being groped by a chief warrant officer; (6) being physically assaulted in approximately 1981 by a serviceman who threw her to the ground and attempted to kiss her; and (7) being cornered by another serviceman who kissed her, held her, and restrained her while she was working alone in the enlisted snack bar. Additionally, the record includes diagnoses of PTSD based on the veteran's reported in-service stressors, including in March 1995 and June 1996 psychological evaluation reports from VA psychologists. Analysis The Board finds that the veteran's claim of entitlement to service connection for PTSD with memory loss is well grounded within the meaning of 38 U.S.C.A. § 5107(a). In this case, the veteran claims to have PTSD with memory loss as a result of in-service stressors which include a date rape, another incident of sexual assault, and sexual harassment. The veteran's statements with respect to her in-service stressors must be accepted as true for the purpose of determining whether the claim is well grounded. See King v. Brown, 5 Vet. App. 19, 21 (1993). There are also of record medical opinions to the effect that the veteran currently has PTSD which is related to her experiences during service. These, too, must be presumed to be credible for the limited purpose of establishing whether the claim of entitlement to service connection for PTSD is well grounded. As the veteran's statements with respect to her in-service stressors must be accepted as true for the purpose of determining whether the claim is well grounded and as there are current diagnoses of PTSD based on these stressors, the veteran's claim for service connection for PTSD is well grounded. To that extent, the appeal is granted. As will be discussed in greater detail below, the Board finds that additional development is necessary and the issue of entitlement to service connection for PTSD with memory loss will be further addressed below in the remand portion of this decision. ORDER The veteran's claim for service connection for PTSD with memory loss is well grounded. To that extent only, the appeal is allowed. REMAND Since the veteran's claim of entitlement to service connection for PTSD has been found to be well grounded, VA's statutory duty to assist attaches. 38 U.S.C.A. § 5107 (West 1991). As noted above, service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f) (1998). See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f) (1998). In this case, as there is no evidence that the veteran was engaged in combat with the enemy or that the claimed stressors are related to such combat, there must be corroborative evidence of the claimed in-service stressors. See Zarycki v. Brown, 6 Vet. App. 91 (1993). While the claims file includes diagnoses of PTSD, these diagnoses of PTSD were based upon reported in-service stressors that have not been verified, including the alleged in-service date rape, sexual assault, and sexual harassment. Verification of the veteran's aforementioned reported in- service stressors is necessary. The existence of 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. See Zarycki, supra. The sufficiency of the stressor is a medical determination and adjudicators may not render a determination on this point in the absence of independent medical evidence. See West; Colvin v. Derwinski, 1 Vet. App. 171 (1991). As discussed above, the presumption of credibility in King applies only to the matter of the well groundedness of the claim. Once all of the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In so doing, the Board has a duty to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477 (Fed.Cir. 1997) and cases cited therein. As noted above, there are reports by the veteran of numerous stressors during service. The evidence of record, however, also shows that the veteran has reported numerous other pre- and post-service stressful incidents. The pre-service traumatic incidents include: witnessing a very serious motor vehicle accident that resulted in death, being injured in a serious car accident, being sexually assaulted and beaten by a man at age six and/or 14, being threatened with a broken bottle, being sexually assaulted by a teenage girl with a coke bottle, being physically abused by her father, being gang raped by male strangers at age 14, several serious closed head injuries during adolescence, observing her father being physically abusive toward her mother, emotional abuse during childhood, and her cousin being killed by a drunk driver when the veteran was 20. She also reported that her father "got too close for a father to get to his daughter," although she subsequently reported that her father had never sexually assaulted or molested her. The post-service stressful incidents include the deaths of two friends in 1988, work and financial problems, and being robbed. Moreover, in addition to PTSD, there are also numerous other psychiatric diagnoses of record. The post-service diagnoses, assessments, and impressions include PTSD; substance and alcohol abuse/dependency, multiple drugs; adjustment disorder with mixed mood and conduct, depression, anxiety attacks, and homicidal and suicidal threats; mixed personality trait, dependency histrionic and paranoid; major depression with suicidal ideation, rule out dysthymic disorder; drug abuse; and major depression. It is noted that victims of in-service personal assault may find it difficult to produce evidence to support the occurrence of the stressor. However, alternate sources are available that may provide credible support to a claim of an in-service personal assault. These include medical or counseling treatment records following the incident, military or civilian police reports, reports from crisis intervention or other emergency centers, statements from confidants such as family members, roommates, clergy, or fellow service members, or copies of personal diaries or journals. VA Adjudication Manual M21-1 (M21-1), Part III, 5.14(c) (February 20, 1996). The Court has held that the provisions in M21-1, Part III, 5.14(c), which addresses PTSD claims based on personal assault are substantive rules which are the equivalent of VA regulations. Cohen; YR v. West, 11 Vet. App. 393, 398-99 (1998); Patton v. West, 12 Vet App 272 (1999). Veterans who claim service connection for disabilities due to an in-service personal assault face unique problems documenting their claims. A stressor development letter specifically tailored for personal assault cases should be sent to such veterans. However, the RO has not sent the veteran such a letter and the Board finds that this should be done. See M21-1, Part III, 5.14(b)(3)(a), 5.14(c)(6), (c)(7); see also Patton. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor based on personal assault. After accomplishing all development requested by this remand, the RO must determine whether the veteran exhibited behavior changes in service . See M21-1, Part III, 5.14(c)(8). If there is evidence of behavior changes, it should be determined whether these indicate the occurrence of a stressor. Secondary evidence may need interpretation by a clinician, particularly if it involves behavior changes, and evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. M21-1, Part III, 5.14(c)(9); Patton. The veteran has reported that she was hospitalized in service after an overdose on drugs and alcohol and that she saw a psychologist in service and was diagnosed with schizophrenia. The record includes no records of this treatment and it appears that the complete service medical records have not been obtained. As it appears that there may be additional service medical records, the Board finds that an additional attempt to obtain all service medical records is warranted. The Board notes that the record includes service medical records that indicate that the veteran was treated for unrelated disorders by private treatment providers during service. The Board finds that the RO should request that the veteran report whether she received private psychiatric or other relevant treatment during service. If she responds in the affirmative, an attempt should be made to obtain all relevant private treatment records dated during the veteran's medical service. See M21-1, Part III, 5.14(c)(5)(a). An April 1988 treatment record from the Kahi Mohala Hospital shows that the veteran had at least one previous psychiatric admission at that facility in October 1987. An attempt to obtain all records from Kahi Mohala Hospital that have not already been obtained is warranted. The record also includes reference to treatment at "Hina Mauka" for alcohol and drug rehabilitation. There are no treatment records from this facility of record. A March 1995 VA psychological evaluation report, shows that the veteran was originally referred to that VA psychologist in 1993 and underwent psychological evaluation at that time; that she was hospitalized at Tripler Army Medical Center in July 1994. The veteran has also reported that she had received additional post-service treatment at the Tripler Army Medical Center. The RO should attempt to obtain all treatment records from Tripler Army Medical Center and the Honolulu, Hawaii VAMC (including the Pacific Center for PTSD). The veteran testified at the April 1999 Travel Board Hearing that she had been treated for stress in the emergency room one or two times a couple of months earlier [travel board hearing transcript at 18]. The most recent treatment records from the San Antonio, Texas VA Hospital in the claims file are dated in July 1997. Therefore, the RO should obtain all inpatient and outpatient treatment records from the San Antonio, Texas VA Hospital since July 1997. The veteran has also been treated at a VA outpatient clinic in San Antonio, Texas and the most recent record from that facility is dated in May 1998. Therefore, the treatment records dated from May 1998 to present should be obtained from that VA outpatient clinic. The veteran has reported that she received treatment at the San Antonio Vet Center until November 1998. Records dated from August 1996 to August 1997 have been obtained from that facility. Therefore, the RO should attempt to obtain all treatment records from the San Antonio, Texas Vet Center dated from August 1997 to present. In order to ensure that the record is fully developed, this case is REMANDED to the RO for the following: 1. The RO should contact the veteran and request that she report all treatment and evaluation that she received for any psychiatric disorder before, during and after service, including the dates and locations of any such treatment. After obtaining the appropriate authorization, the RO should then attempt to obtain any such records which have not been previously obtained. The RO should specifically obtain all inpatient and outpatient treatment records from the Honolulu, Hawaii VAMC, including the Pacific Center for PTSD; all inpatient and outpatient treatment records from the Audie L. Murphy Veterans' Hospital in San Antonio, Texas dated from July 1997 to present; all outpatient treatment records from the San Antonio, Texas VA outpatient clinic dated from May 1998 to present; treatment records from the San Antonio, Texas Vet Center dated from August 1997 to present; all treatment records from Hina Mauka; and all treatment records not already obtained from the Kahi Mohala Hospital. 2. The RO should make an additional attempt to obtain the veteran's complete service medical records from all available sources. In connection therewith, the RO should attempt to obtain all of the veteran's in-service and post-service treatment records from the Tripler Army Medical Center in Hawaii. 3. The RO should afford the veteran the opportunity to submit any additional evidence in support of her claim for service connection for PTSD with memory loss, to include statements from relatives. She should be asked to provide any additional information possible regarding the stressful events claimed to have caused PTSD and to identify potential alternative sources for supporting evidence regarding the stressors she alleges occurred in service. In particular, the veteran should provide as much detailed information as possible including the dates, places, names of people present, and detailed descriptions of events. The veteran is advised that this information is necessary to obtain supportive evidence of the stressful events and that she must be as specific as possible because without such details an adequate search for verifying information can not be conducted. The RO should then request any supporting evidence from alternative sources identified by the veteran and any additional alternative sources deemed appropriate, including military police records, if the veteran has provided sufficiently detailed information to make such request feasible. 4. If the RO determines that there is evidence of behavior changes at the time of an alleged stressor which might indicate the occurrence of an in-service stressor, or if otherwise deemed necessary, the RO should obtain interpretation of such evidence by a clinician as provided in M21-1, Part III, 5.14(c)(9). 5. The RO should then review the file and make a specific written determination, in accordance with the provisions of 38 C.F.R. § 3.304(f) and M21-1, Part III, 5.14(c), 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. 6. Thereafter, if any claimed in-service stressor is corroborated by the evidence or if otherwise deemed warranted, the veteran should be afforded a VA psychiatric examination. The claims file, a separate copy of this remand, and a list of the stressor(s) found by the RO to be corroborated by the evidence must be provided to the examiner for review, the receipt of which should be acknowledged in the examination report. The examiner must determine whether the veteran has PTSD and, if so, whether the in-service stressor(s) found to be established by the RO are sufficient to produce PTSD. The examiner should be instructed that only the verified events listed by the RO may be considered as stressors. The examiner should utilize the DSM-IV in arriving at diagnoses and identify all existing psychiatric diagnoses. If PTSD is diagnosed, the examiner must explain whether and how each of the diagnostic criteria is or is not satisfied. Also, if PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. The examiner should specifically comment on and indicate agreement or disagreement with on a March 1995 psychological report to the effect that the veteran's psychiatric problems may have begun in childhood, but that such pre-existing pathology was exacerbated due to her experiences during service. A complete rationale must be given for any opinion expressed and the foundation for all conclusions should be clearly set forth. The report of the psychiatric examination should be associated with the veteran's claims folder. 7. The veteran's claim should then be readjudicated with consideration of all pertinent law, regulations, Court decisions and M21-1, Part III, 5.14(c). If the veteran's claim remains denied, she and her representative should be provided with a Supplemental Statement of the Case, which includes any additional pertinent law and regulations, specifically to include M21-1, Part III, 5.14(c). The applicable response time should be allowed. This case should then be returned to the Board, if in order, after compliance with the customary appellate procedures. No action is required of the veteran until she is so informed. The Board intimates no opinion as to the ultimate decision warranted in this case, pending completion of the requested development. 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. 1999) (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. Barry F. Bohan Member, Board of Veterans' Appeals