Citation Nr: 9924053 Decision Date: 08/24/99 Archive Date: 08/27/99 DOCKET NO. 95-40 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from June 1980 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1994 rating action of the Department of Veterans Affairs (VA) Wichita, Kansas Medical and Regional Office Center (M&ROC), which denied the veteran's claims for service connection for PTSD and for Human Immunodeficiency Virus (HIV) infection. The veteran timely appealed these determinations to the Board. The Board observes that, in a July 1993 rating decision, the RO previously denied the veteran's claim for service connection for PTSD. In doing so, the RO explained that the evidence was insufficient for rating purposes, in large part, because the veteran failed to report for a VA psychiatric examination, and there was no diagnosis of PTSD. However, the Board concludes, (as did, apparently, the RO), that because veteran has since been diagnosed as having PTSD that has been, at least in part, related to experiences that occurred during his period of military service, de novo consideration of the current PTSD claim is warranted. See 38 U.S.C.A. §§ 7104, 7105 (West 1991); 38 C.F.R. § 3.156, 20.302, 20.1100, 20.1103 (1998). The veteran appealed the denial of his claims for service connection to the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court). In a January 1999 order, the Court granted a joint motion for remand, vacated the Board's decision as to his claim for service connection for PTSD and remanded the case for additional proceedings. The Court also dismissed the veteran's appeal with respect to his claim for service connection for HIV infection. REMAND In granting the joint motion for remand of the veteran's claim for PTSD based on his allegation that he was raped on two occasions during service, the Court observed that the special evidentiary procedures for PTSD claims based on personal assaults that were established in February 1996 (see VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14 (Feb. 20, 1996)) had not been complied with. As a result, the Court directed that such development on remand. In Patton v. West, 12 Vet. App. 272 (1999), the Court recently discussed the relevance of the above VA ADJUDICATION PROCEDURE MANUAL M21-1 provisions. In that case, the Court observed that such provisions provide, among other things, that the general PTSD stressor development letter is inappropriate for this type of claim, and state instead that the M&ROC should rely on special letter formats expressly developed for use in personal-assault claims. See VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14 (c)(4, 6 and 7). The Court further noted that these procedures outline alternative sources of corroborating evidence in the event that there is no documentation that an alleged personal assault occurred. The Board's review of these provisions shows that such documentation may include testimonial statements from confidants such as family members or clergy, as well as evidence of behavioral changes to include as established by personnel and other records and lay statements. As such, consistent with the Court's order, on remand, the M&ROC must ensure that the special evidentiary provisions relating to claims for service connection for PTSD based on a personal assault, which are contained in VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14, are complied with. In completing the actions requested on remand, the RO also should comply with the relevant M21-1 provision concerning the post-development determination as to whether a claimed stressor is (or, is not) established by the record. In this regard, the Board would emphasize that the requirement that credible evidence establish that the stressful event actually occurred does not mean that the evidence actually proves that the incident occurred, but, rather, that the preponderance of the evidence, as a whole, supports the conclusion that it occurred. See VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c)(3). Accordingly, the Board hereby REMANDS the case to the M&ROC for the following actions: 1. The RO should obtain and associate with record a complete set of the veteran's service personnel records. 2. The M&ROC should send the veteran a personal assault stressor development letter that comports with the special procedures established in VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14 for claims for service connection for PTSD predicated on such in-service assaults. 3. The M&ROC should request that the veteran submit a list (concerning names, dates and addresses) for all alternative objective sources that may establish the occurrence of the claimed stressors. This should specifically include medical records from physicians or caregivers who may have treated the veteran either immediately following an incident or sometime thereafter; and military and/or civilian police reports. After securing any necessary release form(s), the M&ROC should directly contact the sources that are identified, obtain copies of the relevant records in their possession that are not already in the claims file, and associate such records with the claims file. The aid of the veteran and his representative in securing such records should be enlisted, as needed. However, if any such records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 4. The M&ROC should also contact the veteran and request that he submit signed statements from persons having personal knowledge of his claimed stressors, to include confidants such as family members, roommates, fellow service members or clergy. The veteran should be notified that statements from persons who knew the veteran during his period of active duty as well as subsequent to separation from military service will be considered. Each person's name and complete address should clearly be shown. Each statement should describe exactly what the person observed and mention specific dates and places. A person on active duty at the time should include his or her service number and military unit. The veteran should also submit copies of any personal diaries or journals pertaining to the occurrence of the claimed stressors. 5. Following receipt of responses from the veteran and all contacted sources, and after accomplishing any additional development deemed warranted by the record, the M&ROC should prepare a report detailing the nature of the alleged in- service stressors, and whether any such stressor is established by the record; this report is then to be added to the claims file. If any alleged in-service stressor is deemed established by the record, the RO should undertake the development requested in paragraph 6 and thereafter. If however, the RO determines that no alleged in-service stressor is established by the record, the RO should skip the development requested in paragraphs 6 and 7, and proceed with paragraph 8. 6. If and only if the record establishes the occurrence of an alleged stressor coincident with his service in the military, the veteran should be examined by a VA psychiatrist to determine whether it is at least as likely as not that he has PTSD is a result of such stressor. Towards this end, the M&ROC should provide to the examiner the report described in paragraph 5, above, and the examiner should only rely only upon the stressor(s) deemed established by the record in rendering his diagnosis. If a diagnosis of PTSD is deemed appropriate, the examiner should explain how the diagnostic criteria of the DSM-IV are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and one or more of the in-service stressors found to be established by the M&ROC. It is imperative that the entire claims folder, containing all evidence relevant to the case (to include a complete copy of this REMAND), should be provided to and be reviewed by the VA psychiatrist who is designated to examine the veteran. The typewritten report of the examination must include all examination findings, as well as the rationale underlying all opinions expressed, citing, as necessary, to specific evidence in the record. The report should be associated with the other evidence on file in the veteran's claims folder. 7. To help avoid future remand, the M&ROC should ensure that all requested development has been completed (to the extent possible) in compliance with this REMAND. See Stegall v. West, 11 Vet. App. 268 (1998). If actions taken are deficient in any manner, appropriate corrective action should be undertaken. 8. The M&ROC should thereafter review the veteran's claim for service connection for PTSD based on an in- service assault, e.g., the alleged in- service rapes, on the basis of all pertinent evidence of record. The M&ROC should provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, specifically to VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14. In doing so, the M&ROC must address all issues and concerns that were noted in this REMAND. 9. If the benefits requested by the veteran continue to be denied, then he and his attorney should be furnished a supplemental statement of the case and given an opportunity to submit written or other argument in response thereto before his case is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication in compliance with the Court's order; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument within the appropriate period. See Kutscherousky v. West, No. 98-2267 (U.S. Vet. App. May 4, 1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). This REMAND must be afforded expeditious treatment by the M&ROC. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) 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. JACQUELINE E. MONROE Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991& Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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).