Citation Nr: 9927303 Decision Date: 09/23/99 Archive Date: 10/05/99 DOCKET NO. 97-20 275A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. A. Wasik, Associate Counsel INTRODUCTION The veteran had active duty for training from June 27, 1971 to October 24, 1971 and from July 2, 1972 to July 16, 1972. The veteran served on active duty from June 1974 to September 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 1996, the RO denied the claim of entitlement to service connection for PTSD. FINDING OF FACT The claim of entitlement to service connection for PTSD is supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim for service connection for PTSD is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual background Review of the service medical records shows that there were no complaints of, diagnosis of or treatment for any mental disorders prior to March 1974. Moderate anxiety reaction was included as an impression in August 1974. A neuropsychiatric evaluation also conducted in August 1974 resulted in an impression of severe borderline personality disorder. Service personnel records demonstrate that the veteran was assigned to the USS Thrasher in 1971. They further demonstrate that the veteran was subjected to non-judicial punishment in October 1971 for failure to obey a lawful order. The service personnel records further show that the veteran did not receive any awards or decorations denoting participation in combat. Psychological testing conducted in December 1989 resulted in a finding of "no suggestion of PTSD in the objective results." On a VA outpatient treatment record dated in May 1990, the veteran first reported that he had been subjected to sexual assault in the past. The first evidence of a diagnosis of PTSD was included on a VA outpatient treatment record dated in September 1996. A diagnosis of PTSD was included on a November 1996 treatment record. The only reported stressor was a homosexual rape which occurred in-service in 1971. The veteran testified at a December 1997 RO hearing that he had been assigned to the USS Thrasher in 1971. He further reported that within a few days of his assignment to the ship, he was sexually assaulted by three shipmates. He stated that he did not report the incident to anyone during service. Criteria 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). 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). Analysis The Board finds that the veteran's claim of entitlement to service connection for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a). In this case, the veteran claims to have PTSD as a result of an in-service homosexual rape. The veteran's statements with respect to his in- service stressor 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 his experience 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 his in-service stressor 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 this stressor, 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 will be further addressed below in the remand portion of this decision. ORDER The veteran's claim for service connection for PTSD is well grounded. To that extent only, the appeal is allowed. REMAND The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 United States Court of Appeals for Veterans Claims (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. 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 stressor is 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 a reported in-service stressor that has not been verified, the alleged in-service rape. Verification of the veteran's aforementioned reported in-service stressor 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. The record shows that, in addition to PTSD, there are also other psychiatric diagnoses of record including major depressive disorder and bipolar disorder. 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. In order to ensure that the record is fully developed, this case is REMANDED to the RO for the following: 1. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA and non-VA, inpatient and outpatient, who may possess additional records pertinent to his claim of entitlement to service connection for PTSD. After obtaining any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the response from the veteran, the RO should obtain all outstanding VA treatment records. 2. The RO should afford the veteran the opportunity to submit any additional evidence in support of his claim for service connection for PTSD, to include statements from relatives. He 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 he 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 he 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, if the veteran has provided sufficiently detailed information to make such request feasible. 3. 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). 4. 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. 5. 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. A complete rationale must be given for any opinion expressed and the foundation for all conclusions should be clearly set forth. 6. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report and required opinions to ensure that they are responsive to an din complete compliance with the directives of this remand an if they are not, the RO should implement corrective procedures. 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 benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case which includes any additional pertinent law and regulations, specifically to include M21-1, Part III, 5.14(c). A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals