Citation Nr: 9932271 Decision Date: 11/16/99 Archive Date: 11/29/99 DOCKET NO. 95-35 761 ) 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: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Appellant, Spouse and Social Worker ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from February 1968 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of March 1995. A hearing was held in June 1999 in Wichita, Kansas, before Jeff Martin, who is a member of the Board and was designated by the chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). FINDINGS OF FACT 1. The evidence of record includes several current medical diagnoses of PTSD. 2. The veteran has testified and/or written describing several stressors that he states he experienced while he was in Vietnam. 3. The veteran has been diagnosed with PTSD based on his claimed Vietnam experiences. CONCLUSION OF LAW The claim of entitlement to service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim for service connection for PTSD to be well grounded, there must be (1) a current diagnosis of PTSD; (2) evidence of in-service stressful event, which may be lay; and (3) medical evidence of a nexus between current symptomatology and an inservice stressor. Cohen v. Brown, 10 Vet. App. 128 (1997). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well- grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). The veteran served on active duty in Vietnam from December 1970 to December 1971, with possibly an additional short tour of duty in Vietnam in 1972. He contends that he suffers from PTSD as a result of Vietnam experiences. The evidence of record includes several medical diagnoses of PTSD, including on a March 1994 psychological evaluation by F. Spickerman, Ph.D., a VA hospital summary in August 1994, and by other private and VA mental health providers after that date. Thus, the first criterion, a current disability, is satisfied. As to the second criterion, an inservice stressor, the veteran has provided several statements of stressful events that he claims occurred while he was in Vietnam, including witnessing several deaths, the constant stress of being under mortar attack, attacks at his base, and sexual assaults on his person. Consequently, the second element, an inservice stressor is satisfied. As to the third element, a nexus between the first two element, the summary of a VA hospitalization in August 1994, which contains a diagnosis of PTSD, based, in part, on a history provided by the veteran of stressors which occurred in Vietnam of having witnessed a guard who died saving the veteran's life, a friend killed who had been riding in the jeep in front of the veteran, and having held a soldier who had been shot in the stomach until medical assistance arrived, which was unable to save the soldier. In addition, in testimony at the hearing before the undersigned in June 1999, C. Yocum testified that she was a clinical social worker and indicated that the veteran's PTSD symptoms resulted from the inservice sexual assaults. Consequently, there is competent evidence of a nexus, and the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Wallin v. West, 11 Vet.App. 509, 514 (1998) ORDER The claim of entitlement to service connection for PTSD is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for PTSD is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). As pertinent to PTSD, this assistance requires obtaining additional evidence regarding both the existence of a stressor and a diagnosis of PTSD. See, e.g., Cohen. Regarding the existence of a stressor, the Court has held that while the sufficiency of a stressful event and its relationship to PTSD are medical determinations, the existence of the precipitating event is a factual matter, and thus within the adjudicatory purview. Cohen; Zarycki v. Brown, 6 Vet.App. 91 (1993); West v. Brown, 7 Vet.App. 70 (1994); 38 C.F.R. § 3.304(f) (1995). Furthermore, as noted in Cohen as well as previous decisions, the evidence required to determine the existence of a stressor is generally dependent upon whether the veteran "engaged in combat," in which case the provisions of 38 U.S.C.A. § 1154(b) (West 1991) apply, or not, in which case, corroboration is required to establish the existence of a stressor. See Moreau v. Brown, 9 Vet.App. 389, 396 (1996). The stressors reported by the veteran did not involve his direct combat participation, and his personnel records, which show his occupational specialty to be Clerk or Clerk Typist, do not reflect combat exposure; therefore, corroboration of his claimed stressors is required. The RO has already attempted to verify several of the veteran's claimed stressors through the U.S. Armed Services Center for Research of Unit Records (USASCRUR). However, the research only pertained to the veteran's first period of Vietnam duty, and there is evidence that the veteran may have had a brief period of duty in Vietnam during 1972. Accordingly, the National Personnel Records Center (NPRC) should be requested to provide additional personnel records for the period from February to December, 1972, if available. The veteran should be asked to provide a statement as to the stressors, not including the personal assault, which occurred during that period. If he provides a statement, verification should be requested from USASCRUR. Regarding the personal assault, the VA ADJUDICATION PROCEDURE MANUAL, M21-1 (MANUAL M21-1), Part III, 5.14c (Feb. 20, 1996) sets forth specific procedures in the development of PTSD claims based on personal assault. The Court has held that these procedures must be followed in such cases. Patton v. West, 12 Vet.App. 272 (1999). These procedures are particularly important in the corroboration of the stressors, which are often not documented in the same manner as other stressors. Patton, at 278, citing MANUAL M21-1, Part III, 5.14c. As noted in the MANUAL M21-1, "[b]ecause 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. Therefore, alternative evidence must be sought." MANUAL M21- 1, Part III, 5.14c(2). Of particular importance in this case are the procedures for developing corroboration of such stressors where, as in this case, the veteran did not contemporaneously report the stressors to any third party. See Patton, at 279-280, citing MANUAL M21-1, Part III, 5.14c(8). The MANUAL M21-1 notes: "Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor." MANUAL M21-1, Part III, 5.14c(8). In this case, the veteran reported, in two separate medical evaluations, that he had attempted to commit suicide in service by slitting his wrists but was unsuccessful. This should be verified, if possible. In addition, the "secondary evidence may need interpretation by a clinician, especially if it involves behavior changes. Evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." MANUAL M21-1, Part III, 5.14c(9), quoted in Patton, at 279. At the veteran's hearing before the undersigned, a clinical social worker provided testimony as to some of these behavior changes and their significance, although she has not reviewed the documentary record. Her records, as well as other treatment records for PTSD, should also be obtained, in connection with the development undertaken pursuant to MANUAL M21-1, Part III, 5.14c. However, in connection with that development, it must be borne in mind that any part of MANUAL M21-1, Part III, 5.14c which appears to require that the claim be proven by a preponderance of the evidence is contrary to law; the correct legal standard is the equipoise standard, which is set forth in 38 U.S.C.A. § 5107(b): where there is an "approximate balance of positive and negative evidence. . . the benefit of the doubt . . . shall be given to the claimant." Patton, at 280. In addition, the veteran testified that he was awarded disability benefits by the Social Security Administration (SSA) in 1994, based on his PTSD. Any records compiled in connection with that determination may be relevant to our determination, and must be obtained. See Holoway v. Brown, 4 Vet.App. 454 (1993). Further, the appellant 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). Consequently, regarding this or any other claimed stressor, the veteran is invited to submit corroborating evidence, including statements from witnesses. Finally, the RO is advised that the Court has found that a remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders." Stegall v. West, 11 Vet.App. 268 (1998). Accordingly, to ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following: 1. The RO should obtain all records compiled in conjunction with the Social Security Administration's award of disability benefits to the veteran in about 1994, to include, but not limited to, the award decision and all medical records considered pursuant thereto, directly from that organization. These records should then be associated with the veteran's claims folder. 2. The RO should notify the appellant that he may submit additional evidence and argument in support of his claim. 3. Regarding the veteran's claimed stressors based on wartime stressors, the RO should request that he submit the dates and locations of any such stressors. 4. The RO should obtain the personnel records for the period of duty from February to December 1972, particularly any assignment to Vietnam during that period. 5. If the above development elicits verifiable stressors, verification should be sought from the U.S. Armed Services Center for Research of Unit Records (USASCRUR), 7798 Cissna Road, Suite 101, Springfield, Virginia 22150-3197. Copies of the veteran's DD 214 and service personnel records should be provided to the USASCRUR, as well as the stressor statement. 6. As to the stressor based on claimed personal assault, the RO should develop the stressors as set forth in MANUAL M21-1, Part III, 5.14c, bearing in mind that the veteran has already testified that he did not tell anyone of the incident during service, or prior to 1994, and that the Court has held that the equipoise standard applies, rather than the preponderance standard. See Patton, supra, at 280. The complete records of the veteran's treatment at the Ray Crisis Center in St. Joseph, Missouri, should be obtained in connection with this development. 7. Regarding the veteran's history that he attempted to commit suicide in service by slitting his wrists, he should be asked whether he sought medical treatment at the time, and whether there are any current visible residuals of this attempt, such as scars. Appropriate action should be taken by the RO, depending upon the response. 8. After the above-requested development has been accomplished to the extent feasible, the RO should schedule the veteran for a VA psychiatric examination, before a board of two examiners. If practicable, one of these examiners should have experience in military-related PTSD, and the other in assault-related PTSD. The claims file, with the newly obtained evidence, and a copy of this remand, as well as a copy of MANUAL M21-1, Part III, 5.14c, must be forwarded to the board and reviewed prior to the examination. If the veteran is diagnosed with PTSD, the examiners should be requested to explain the sufficiency of each specific stressor relied upon for the diagnosis, the basis for the conclusion that the veteran's symptomatology was adequate to support a diagnosis of PTSD, and whether there is a causal nexus between the veteran's specific claimed inservice stressor(s) and his current symptomatology. 7. After the development requested above has been completed, the RO should review the veteran's claims folder and ensure that all the foregoing development has been conducted and completed in full. If any development is incomplete or inadequate, appropriate corrective action should be taken. After completion of the requested development, the case should be reviewed by the originating agency. If the decision remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate consideration, if otherwise in order. While regretting the delay involved in remanding this case, it is felt that to proceed with a decision on the merits at this time would not withstand Court scrutiny. 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. JEFF MARTIN Member, Board of Veterans' Appeals