Citation Nr: 9931578 Decision Date: 11/08/99 Archive Date: 11/19/99 DOCKET NO. 98-03 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for bipolar disorder, and personality disorder. REPRESENTATION Appellant represented by: Colorado Department of Human Services, Division of Veterans Affairs ATTORNEY FOR THE BOARD Solomon J. Gully, IV, Associate Counsel INTRODUCTION The veteran had active service from June 1981 to January 1989. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 1997 rating decision by the Denver, Colorado Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that in the veteran's February 1998 substantive appeal (Form 1-9), the veteran indicated that he wished to appear at the local RO for a video conference hearing before the Board. However, in March 1998 correspondence, the veteran withdrew his request for a video conference hearing. In view of the foregoing, the Board is satisfied that the veteran's hearing request has been withdrawn. 38 C.F.R. § 20.704(d), (e) (1999). Lastly, the Board finds that the issue of entitlement to service connection for bipolar disorder, and personality disorder is inextricably intertwined with the issue of service connection for PTSD. Upon reviewing the record, the Board is of the opinion that additional development is warranted as to the veteran's claim for service connection for PTSD. Therefore, the disposition of the veteran's claim for service connection for bipolar disorder, and personality disorder will be held in abeyance pending further development by the RO, as requested below. FINDING OF FACT It is plausible that the veteran's PTSD may be linked to active service. CONCLUSION OF LAW The claim of entitlement to service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be allowed for a chronic disability, resulting from an injury or disease, which is incurred in or aggravated by the veteran's period of active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection may also be allowed on a presumptive basis for psychosis, if the disability becomes manifest to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (1999). In the case of PTSD, clear medical diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor actually occurred, and a link between current symptomatology and the in-service stressor, is required. 38 C.F.R. § 3.304(f). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Id. For a showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required when the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). The U.S. Court of Appeals for Veterans Claims (the Court) has held that lay observations of symptomatology are pertinent to the development of a claim of service connection, if corroborated by medical evidence. See Rhodes v. Brown, 4 Vet. App. 124, 126-127 (1993). The Court established the following rules with regard to claims addressing the issue of chronicity. Chronicity under the provisions of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under applicable case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495 (1997). A lay person is competent to testify only as to observable symptoms. A lay person is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability. Falzone v. Brown, 8 Vet. App. 398, 403 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1994). However, service connection may be granted for a post-service initial diagnosis of a disease that is established as having been incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (1999). The threshold question is whether the veteran has presented evidence that his claim is well grounded. See 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A mere allegation that a disability is service connected is not sufficient; the veteran must submit evidence in support of his claim which would justify a belief by a fair and impartial individual that the claim is plausible. In order for a claim to be well grounded, there must be competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in- service injury or disease and a current disability (medical evidence). See Caluza v. Brown, 7 Vet. App. 498 (1995). Where the determinative issue involves a question of medical diagnosis or causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Libertine v. Brown, 9 Vet. App. 521 (1996); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Grivois v. Brown, 6 Vet. App. 136, 140 (1994), citing Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, lay statements regarding a medical diagnosis or causation do not constitute evidence sufficient to establish a well-grounded claim under 38 U.S.C.A. § 5107(a). See Grottveit, 5 Vet. App. at 93. 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 verbal harassment and numerous physical assaults in service. The veteran's statements with respect to his 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). Several diagnoses of PTSD are also of record. 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 stressors must be accepted as true for the purpose of determining whether the claim is well grounded and as there are diagnoses of PTSD based on these stressors, the veteran's claim for service connection for PTSD is well grounded. Consequently, VA's statutory duty to assist attaches. 38 U.S.C.A. § 5107 (West 1991). A July 1985 service medical record notes that the veteran sought treatment for headache, and "jaw and teeth pain" after being struck in the face by unknown assailants. A physical examination revealed two minor cuts inside the upper lip. The diagnostic impression was concussion, and mild facial trauma. A record dated later that month indicates that the veteran was having an uneventful recovery from the head trauma, and his injuries were resolving nicely. On separation examination in December 1988, the veteran specifically denied a history of head injury, frequent trouble sleeping, depression, loss of memory, nervous trouble, or periods of unconsciousness. The examination report is negative for a psychiatric disorder, and a clinical psychiatric evaluation was normal. A November 1996 VA outpatient treatment record notes that the veteran was referred to the VA by an emergency room physician after presenting with complaints of pain in the head, neck, shoulders and back. The veteran related that he experienced suicidal ideations earlier in the day. He "talked at length" about his resentment towards his parents, who were noted to be alcoholics, and indicated that they mistreated him. He explained that his father was particularly abusive. In addition, the veteran reported that he was physically assaulted "numerous times" during service. The examiner concluded that the veteran had "a lot of dependency issues, probably related to inadequate parenting he received," and noted that he was "struggling with self-esteem issues." A private hospital report dated later that month notes that the veteran was admitted for treatment following a suicide attempt. The veteran related that his mother was an alcoholic, and gave a history of physical abuse from infancy through adolescence. He reported "a series of being a victim of abuse," and indicated that he disliked the Marine Corps and "many of his recent jobs." On mental status examination, the veteran was noted to be "obsessed with his Marine Corps experience." His speech was pressured, his mood was angry, and his affect was flat. He reported visual and auditory hallucinations of Satan laughing at him, and paranoid delusions of other people being out to hurt him. His insight, judgment and impulse control were noted to be poor. The discharge diagnosis was AXIS I - Post-traumatic stress disorder, and bipolar disorder. AXIS II - No diagnosis. AXIS III - Peptic acid disease, tension headache, and status post lacerations of both wrists in a suicide attempt. AXIS IV - Psychosocial stressors - problems with primary support group, occupation problems, and problems with social environment. AXIS V - Global assessment of functioning (GAF) - 42 at discharge. Private medical records show treatment for various psychiatric disabilities, including PTSD and bipolar disorder, from February 1997 to October 1997. A March 1997 private hospital report notes a long history of physical abuse during childhood, as well as multiple beatings and blows to the head during service. The record reports that the veteran first received psychiatric treatment in 1992 or 1993. The veteran stated that he was having violent thoughts of "taking revenge on the Marine Corps," where he was "severely abused." He also reported that he wanted to burn down the home of his parents, who he felt abused him during childhood. His suicidal ideation took the form of wanting to jump out of a window. Current symptoms included depression, including some initial sleep disturbance, loss of interest in usual activities, feelings of hopelessness and helplessness, decreased energy, decreased concentration, and suicidal and homicidal ideation. A CT scan of the brain was significant for mild volume loss for a man his age. The discharge diagnosis was AXIS I - 1. Bipolar mood disorder, mixed, severe, with psychotic features. 2. Dementia secondary to head trauma. 3. Rule out post-traumatic stress disorder. AXIS II - Deferred. Axis III - None. The veteran filed a claim of entitlement to service connection for PTSD in May 1997, indicating that he "suffered physical and mental abuse" during service. In the Information in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD), submitted in June 1997, the veteran reported that he was verbally harassed and "beaten physically dozens of times" during service. He explained that he was "beaten daily" from November to December 1981, and was hospitalized for a concussion and "kicks in the face" in June 1985. He further reported that "Sergeant Fox" punched him in the head several times because he refused to participate in the hazing/initiation of other Marines. A July 1997 report from the veteran's private physician notes a diagnosis of bipolar disorder v. schizoaffective. On VA examination in July 1997, the veteran gave a history of abuse and being "kicked around" from childhood to the present time. He related that he received outpatient treatment for psychiatric symptoms in 1995 at the instigation of his employer, Reynolds Aluminum. He was functioning poorly and treatment by Dr. Steve Popkin, a psychiatrist, was noted. He was first hospitalized for treatment of his psychiatric disorder in October 1996. The veteran reported that he was told he had "generalized volume loss of the cerebral cortex similar to what would be seen in a boxer," following imaging of the brain during hospitalization in March 1997. He reported that his parents were alcoholics, and both would pass out at times at home. He explained that his father was physically abusive, and was violent and unpredictable when drinking. As a youngster, the veteran would occasionally fight when "taunted excessively." He later abused alcohol "freely and excessively," and was periodically involved in bar brawls during service. He described being physically assaulted during "regular hazing" in service by soldiers of lessor rank, the same rank, and superior rank. The veteran reportedly found himself in the same "antagonistic role" during post-service employment. The final assessment was AXIS I - 1. Bipolar disorder, the most recent episode manic, severe with psychotic features. 2. Alcohol abuse, abstinent for six months. AXIS II - Personality disorder, not otherwise specified, with marked impulsivity and general low level of functioning. AXIS V - Global assessment of function (GAF) - 45. The examiner commented that the veteran had serious impairment in social and occupational functioning, had no friends, and had been unable to keep a job in recent years. Based on this evidence, a December 1997 rating decision denied service connection for PTSD, bipolar disorder and personality disorder. The veteran filed a notice of disagreement (NOD) with this decision in December 1997, and submitted a substantive appeal (Form 1-9) in February 1998, perfecting his appeal. ORDER The claim of entitlement to service connection for PTSD is well grounded. REMAND The Board notes that while a personality disorder was diagnosed on VA examination in July 1997, service connection may not be granted for a personality disorder. 38 C.F.R. §§ 3.303(c), 4.9 (1999). See Winn v. Brown, 8 Vet. App. 510, 516 (1996), and cases cited therein. 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) (1999). See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f) (1999). 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 were based upon reported in-service stressors that have not been verified, including the alleged in-service physical assaults. 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 various other pre- and post-service stressful incidents. The pre-service traumatic incidents include emotional abuse during childhood, and physical abuse by his parents. The post-service stressful incidents include work and financial problems. Moreover, in addition to PTSD, there are also several other psychiatric diagnoses of record. The post-service diagnoses include PTSD; bipolar disorder; bipolar disorder v. schizoaffective; alcohol abuse; severe depression; dementia; and psychiatric disorder, not otherwise specified. 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 light of the foregoing, the Board finds that further development, as specified below, is warranted. Accordingly, the case is REMANDED for the following development: 1. The veteran may submit additional evidence and argument in support of his claim. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should contact the veteran and request that he report all treatment and evaluation that he received for any psychiatric disorder before, during and after service, including the dates and locations of any such treatment. He should specifically identify the providers who saw him in 1992 and 1993. After obtaining the appropriate authorization, the RO should then attempt to obtain any such records which have not been previously obtained. The attention of the RO is invited to the report in July 1997 that the claimant received outpatient treatment at the instigation of his employer, Reynolds Aluminium, in 1995. The provider he saw apparently was Dr. Steve Popkin. 3. The veteran should also be requested to indicate whether he is in receipt of, or has applied for, Social Security Administration benefits based upon disability. If so, the RO should obtain from the Social Security Administration a copy of any disability determination made and a copy of the medical records upon which the award was based. 38 U.S.C.A. § 5106 (West 1991). 4. Since the veteran has alleged stressors which involve allegations of non-combat personal assault, the RO should develop the veteran's claim in compliance with Patton under all of the applicable requirements of VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, Paragraph 5.14(c) (Feb. 20, 1996). The RO should send the veteran a special PTSD personal assault letter and questionnaire in order to assist developing the veteran's claim. 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, including military police records, if the veteran has provided sufficiently detailed information to make such a request feasible. 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. The veteran should be examined by a VA psychiatrist to determine whether any psychiatric disorder or disorders are present, and, if so, the correct diagnostic classification of any disorder present. The examination report should include a detailed account of all pathology found to be present. The examiner should provide explicit responses to the following questions: (a) Does the veteran have a psychiatric disability? (b) If a diagnosis of PTSD is appropriate, the examiner should determine 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. (c) The examiner should identify all existing psychiatric diagnoses, and specifically address the etiology of each disorder. If the examiner determines that any psychiatric disorder was present prior to service, he or she should be asked to provide an opinion as to whether any such disability underwent increase in disability during service (aggravation) beyond the natural progress of the disease. If the examiner notes the presence of any coexistent psychiatric disorders, an opinion should be provided as to whether such psychiatric disorders are causally related to PTSD. The report of the examiner should include a complete rationale for all opinions expressed. All special studies or tests including psychological testing and evaluations, such as the Minnesota Multiphasic Psychological Inventory, deemed necessary by the examiner are to be accomplished. The claims folder or the pertinent medical records contained therein must be reviewed by the examiner in conjunction with the examination. 7. The RO should carefully review the evaluation report and the other development requested above to ensure compliance with this remand. If any development requested above has not been furnished, including any requested findings and/or opinions on examination, remedial action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. The veteran's claims 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 claims remains denied, he and his 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. The veteran is expressly advised that it is vital that he cooperate with the request that he provide additional information as requested. It is also vital that he appear for the VA examination as the examination may produce findings and medical opinions that are critical to his claim. Moreover, if he fails to cooperate with the development of additional evidence, including the treatment records from 1992 to 1996, or if he fails to appear for examination, the lack of such evidence may be highly detrimental to his claim, and by regulation the claim would be reviewed on the evidence of record. 38 C.F.R. § 3.655 (1996); Connolly v. Derwinski, 1 Vet. App. 566 (1991). Finally, the veteran is cautioned that failure to cooperate in the development of treatment records from 1992 and 1996 may lead the Board to conclude that such evidence would be against the claim. The case should then be returned to the Board for further review. No action is required of the veteran until he is notified. 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. Richard B. Frank 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).