Citation Nr: 9930479 Decision Date: 10/25/99 Archive Date: 10/29/99 DOCKET NO. 94-33 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether the claim of entitlement to service connection for post traumatic stress disorder (PTSD) is well grounded, and, if so, whether service connection is warranted. 2. Entitlement to service connection for an acquired psychiatric disorder (other than PTSD). REPRESENTATION Appellant represented by: Washington Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD P.M. DiLorenzo, Counsel INTRODUCTION The veteran served on active duty from March 1957 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, that denied the above-noted claim(s). The case was previously before the Board in April 1997, when it was remanded for examination of the veteran and medical records. The issues of entitlement to service connection for PTSD and for an acquired psychiatric disorder other than PTSD are again the subject of a remand. In February 1999, a hearing was held before the undersigned, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999). FINDING OF FACT The veteran's claim of entitlement to service connection for PTSD is plausible. CONCLUSION OF LAW The veteran has presented a well-grounded claim of entitlement to service connection for PTSD. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). In order for a claim for service connection for PTSD to be successful there must be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1999); see also Cohen v. Brown, 10 Vet. App 128 (1997). It is the responsibility of a person seeking entitlement to service connection to present a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991). Generally, a well-grounded claim is a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In order to be well grounded, a claim for service connection must be accompanied by supporting evidence that the particular disease, injury, or disability was incurred in or aggravated by active service; mere allegations are insufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 610-611 (1992); Murphy, 1 Vet. App. at 81. In general, the appellant's evidentiary assertions are accepted as true for the purpose of determining whether a well- grounded claim has been submitted. King v. Brown, 5 Vet. App. 19, 21 (1993). Here, the medical evidence shows a diagnosis of PTSD by Patricia M. Johnston, M.S. The veteran has submitted competent lay statements of inservice experiences alleged to have caused his PTSD, i.e., being sexually assaulted by a sergeant. Medical professionals have diagnosed PTSD based on the veteran's purported service experiences. Therefore, it is sufficient for the establishment of a well-grounded claim. See Patton v. West, 12 Vet. App. 272, 277 (1999) (medical evidence of a current diagnosis of PTSD, lay evidence of sexual assault as the noncombat, in-service stressor, and medical-nexus evidence generally linking his PTSD to service is sufficient to well-ground a claim). Having determined that the claim for service connection for PTSD is well grounded, it appears that additional assistance is required in order to fulfill the duty to assist. 38 U.S.C.A. § 5107(a) (West 1991). Accordingly, the underlying issue of entitlement to service connection will be the subject of the remand that follows. ORDER The claim for service connection for PTSD is well grounded, and, to that extent, the appeal is granted. REMAND Additional development is warranted prior to adjudication of these claims. Potentially relevant medical records have not been obtained by the RO. For example, the veteran was awarded Social Security Administration (SSA) disability benefits in May 1988. He has also reportedly received treatment for psychiatric problems from Dr. Stephens for 15 to 20 years (see VA outpatient treatment note, dated January 27, 1999); from Dr. Thompson; from Patricia M. Johnston, M.S.; from Drs. Paul Swanson and Jack Servinghouse; and at Sparks Alcohol Training Center. The RO should make arrangements to obtain these records on remand. See 38 U.S.C.A. § 5103(a), 5107(a) (West 1991); Epps v. Brown, 9 Vet. App. 341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69 (1995); Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Martin v. Brown, 4 Vet. App. 136 (1993) (not only must the final Social Security Administration decision be obtained, but all records upon which that decision was based must be obtained as well); Littke v. Derwinski, 1 Vet. App. 90 (1990); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Moreover, the Board concludes that the nature of the claim for service connection for PTSD is such that the provisions of Manual M21-1, regarding claims based on personal assault and the method of developing such cases are applicable to this case. According to Manual M21-1, VA has recognized that, because assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. Manual M21-1, Part III, paragraph 5.14(c)(2). The requirement that the claims folder contain credible evidence to support the veteran's assertion that the stressful event occurred does not mean that the evidence actually prove that the incident occurred, but rather that the evidence support the conclusion that it occurred. Manual M21-1, Part III, paragraph 5.14(c)(3). In addition to service records, alternative evidence must be sought. Manual M21-1, Part III, paragraph 5.14(c)(2), (4), (5), (7). Such alternative sources that may provide credible evidence of the in-service stressor include: medical records from private (civilian) physicians or caregivers who may have treated the veteran either immediately following the incident or sometime later and testimonial statements from confidants such as family members, roommates, fellow service members, or clergy. Manual M21-1, Part III, paragraph 5.14(c)(4). VA recommends the use of specific development letters to be furnished to the veteran in cases in which the stressful incident is a personal assault. See Manual M21-1, Part III, paragraph 5.14(c)(5) and (6) recommending the use of the sample development letters provided at Exhibits B.10 and B.11. It does not appear that the RO has informed the veteran of potential sources of verification of his claimed in-service stressors [see Manual M21-1, Part VI, paragraph 11.38(b)(2) (October 28, 1998) and Manual M21-1, Part III, paragraph 5.14(c) (April 30, 1999)], as well as other alternative sources of such information [see Manual M21-1, Part III, paragraph 5.14(c)(4)]. Moreover, the RO has not furnished the veteran the development letters recommended by the VA for use in cases involving personal assault. See Manual M21-1, Part III, paragraph 5.14(c)(5), (6) recommending the use of the sample development letters provided at Exhibits B.10 and B.11. Further, on remand the RO should obtain the veteran's service personnel records from the National Personnel Records Center (NPRC) and specifically request information concerning whether or not the veteran was absent without leave (AWOL) and was transferred from one company to another during his Advanced Individual Training (AIT) in 1957, and the reasons therefor. An additional VA psychiatric examination should also be conducted on remand. The veteran should be examined by a psychiatrist who has not previously examined him, to determine the correct diagnosis of any psychiatric disorder. The examiner should discuss the claimed stressors and describe any relationship between a diagnosis of PTSD and those stressors. Accordingly, the case is REMANDED for the following development: 1. Contact the NPRC or any other indicated agency and request the veteran's complete service personnel records. Ask NPRC to verify whether or not the veteran was AWOL and was transferred from one company to another during his AIT in 1957, and the reasons therefor. 2. Contact the veteran and request that he provide the names and addresses of all health care providers who have treated him for any psychiatric disorder since his separation from service. Any records dated within the first post-service year would be of particular importance. The Board is interested in any treatment received at Sparks Alcohol Training Center; from Patricia M. Johnston, M.S.; from Dr. Thompson; from Dr. Paul Swanson; from Dr. Jack Servinghouse; and at the VA Medical Center in Spokane, Washington, including any treatment received in the mental hygiene clinic. Obtain all records of any treatment reported by the veteran that are not already in the claims file. With respect to any VA records, all records maintained are to be requested, to include those maintained in paper form and those maintained electronically (e.g., in computer files) or on microfiche. Associate all records received with the claims file. If requests for any private treatment records are not successful, tell the appellant and his representative so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 CFR § 3.159(c). 3. Obtain all the records from the SSA that were used in considering the veteran's claim for disability benefits (decided in 1985 and 1988), including any reports of subsequent examinations or treatment. If these records are duplicates of those already on file, that fact should be annotated in the claims folder. Any other records should be associated with the claims folder. 4. Send the veteran an appropriate development letter as recommended for use in cases involving personal assault. See Manual M21-1, Part III, paragraph 5.14(c)(5), (6) (recommending the use of the sample development letters provided at Exhibits B.10 and B.11). In doing so, inform the veteran of potential sources of verification of his claimed in-service stressors [see Manual M21-1, Part VI, paragraph 11.38(c)(2)], as well as other alternative sources of such information [see Manual M21-1, Part III, paragraph 5.14(c)]. The veteran has already provided the names of two sergeants who could corroborate that the claimed incidents occurred, one of which reportedly noticed a change in his behavior and arranged for his transfer to another company. See Transcript of personal hearing before the Board, dated February 26, 1999. The RO should pursue all available avenues to assist him in locating anyone identified for a statement regarding the claimed incidents. 5. Schedule the veteran for a VA examination by a psychiatrist who has not previously examined him to determine the correct diagnosis of any psychiatric disorder. Prior to conducting the examination, the examiners should be provided a copy of this remand and the veteran's claims folder and should review the veteran's medical history. The diagnosis should be in accordance with the American Psychiatric Association's: Diagnostic and Statistical Manual of Mental Disorders-IV. All necessary special studies or tests including appropriate psychological testing and evaluation is to be accomplished. The examination report should reflect review of pertinent material in the claims folder. The examiner should integrate the previous psychiatric findings and diagnoses of current findings to obtain a true picture of the nature of the veteran's psychiatric status. The examiner must express an opinion as to whether the veteran meets the criteria for PTSD contained in DSM-IV. If so, the examiner should specify the factors relied upon to support the diagnosis and the specific stressor(s) which prompted the diagnosis. In addition, the examiner must express an opinion as to whether the in- service stressor(s) alleged by the veteran are sufficient to produce PTSD and whether there is a link between the current symptomatology and one or more of the in- service stressors. The examiner should also review the veteran's service medical records and the lay statements from the veteran's mother and sister and state whether they reflect any behavioral changes in the veteran consistent with being the victim of a sexual assault. See Manual M21-1, Part III, paragraph 5.14(c)(8). The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 6. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the requested examination 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 (1999); see also Stegall v. West, 11 Vet. App. 268 (1999). 7. Readjudicate the veteran's claim. If the benefit sought on appeal remains denied, provide the veteran and his representative a supplemental statement of the case, which includes consideration of all medical evidence received since the supplemental statement of the case issued in October 1998. Then, the claims folder should be returned to the Board for further appellate consideration. The veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this REMAND are to obtain additional information and to comply with all due process considerations. 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 Appeals for Veterans Claims 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. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals