Citation Nr: 9932290 Decision Date: 11/16/99 Archive Date: 11/29/99 DOCKET NO. 97-33 716A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a chronic acquired psychiatric disorder claimed as post-traumatic stress disorder (PTSD) and depression with psychosis. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. A. Wasik, Associate Counsel INTRODUCTION The veteran served on active duty from May 1969 to May 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In April 1997, the RO denied service connection for PTSD. In October 1997, the RO denied service connection for depression with psychosis. The veteran has perfected appeals for both rating decisions. The Board notes service connection was denied for situational anxiety in August 1980 and the veteran did not appeal that rating decision. The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") has held that "a claim based on the diagnosis of a new mental disorder ... states a new claim, for the purpose of the jurisdictional requirement, when the new disorder had not been diagnosed and considered at the time of the prior notice of disagreement." Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996). Diagnoses of PTSD and depression with psychosis were not of record at the time of the August 1980 rating decision. The Board finds the issue of entitlement to service connection for a chronic acquired psychiatric disorder must be adjudicated on the basis of an original claim. FINDING OF FACT The claim of entitlement to service connection for a chronic acquired psychiatric disorder is supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim for service connection for a chronic acquired psychiatric disorder 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 the veteran was diagnosed with situational anxiety in October 1969. A psychiatric consultation conducted in February 1970 found no evidence of neurosis, psychosis, or suicidal ideation. The veteran's mental status was determined to be normal at the time of the separation examination conducted in May 1970. The veteran was medically discharged from active duty as a result of bilateral claw toes. Private treatment records associated with the claims files include diagnoses of bipolar disorder, PTSD, and adjustment disorder beginning in March 1995. VA hospitalization records associated with the claims files include pertinent diagnoses of bipolar disorder, personality disorder, dysthymia, panic disorder with agoraphobia and major depression with psychotic features beginning in August 1995. Psychological testing conducted in July 1995 was interpreted as revealing the possibility of a thought disorder and also the possibility of schizotypal personality or pre-psychotic disorder. The report of a May 1996 VA PTSD examination has been associated with the claims files. The veteran alleged that during active duty she had been sexually assaulted by a single female on one occasion, by three females on another occasion and by a male photographer on a third occasion. The diagnosis was PTSD with depression. The transcript of an August 1999 travel Board hearing at the RO conducted by the undersigned member of the Board is of record. The veteran testified that she was first diagnosed with depression in 1996. She alleged that the depression was the result of two in- service sexual assaults, one by a female (June 1969) and one by a male (April or May of 1970). She also testified that she was attacked by three lesbians during active duty. She did not supply a date for the alleged attack. She was receiving Social Security disability payments since 1996 due to her psychiatric illness. Criteria 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) (1999); Cohen v. Brown, 10 Vet. App. 128 (1997). Analysis The Board finds that the veteran's claim of entitlement to service connection for a chronic acquired psychiatric disorder 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 in-service personal assaults. The veteran's testimony with respect to her 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). Included in the claims files are the results of a VA PTSD examination wherein the examiner diagnosed the disorder. The only stressors included on the examination report were service related. This also must be presumed to be credible for the limited purpose of establishing whether the claim of entitlement to service connection for a chronic acquired psychiatric disorder is well grounded. As the veteran's testimony with respect to her in-service stressors must be accepted as true for the purpose of determining whether the claim is well grounded and as there is a current diagnosis of PTSD based on these stressors, her claim for service connection for PTSD is well grounded. To that extent, the appeal is granted. The Board notes the veteran has claimed entitlement to service connection for depression with psychosis. While there are diagnoses of the disorder included in the claims files, the disorder has not been linked to active duty. The Board finds, however, the claim of entitlement to service connection for depression with psychosis is inextricably intertwined with the claim of entitlement to service connection for PTSD. 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 a chronic acquired psychiatric disorder is further addressed below in the remand portion of this decision. ORDER The veteran's claim of entitlement to service connection for a chronic acquired psychiatric disorder is well grounded. To that extent only, the appeal is granted. 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 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 a chronic acquired psychiatric disorder 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) (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 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 reported in-service stressors that have not been verified. 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. 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 address 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). The Board finds the RO complied with one of the development requirements from M21-1, Part III, 5.14(c) by sending the veteran stressor development letters specifically tailored for personal assault cases. The Board further finds, however, that the RO failed to comply with the provisions in M21-1, Part III, 5.14(c) regarding behavior changes. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor based on personal assault. 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. The Board notes on a Social Work Assessment dated in July 1995, it was reported the veteran's aunt alleged that she was the victim of a sexual assault during high school. The veteran has not reported any such incident. The Board finds the veteran and the veteran's aunt should be contacted and further information be obtained regarding the alleged pre-service sexual assault. The veteran has testified that she was in receipt of Social Security Administration disability benefits since 1996 due to psychiatric disorders. Such records have not been associated with the claims files. The RO must attempt to secure these records. The Court has indicated that medical records upon which an award of Social Security Disability benefits has been predicated are relevant to VA claims for service connection and an increased rating. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). 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 her claim of entitlement to service connection for a chronic acquired psychiatric disorder. 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. The RO should request the veteran to provide any information regarding an alleged sexual assault which occurred while the veteran was in high school. 2. The veteran's aunt should be contacted to obtain any further information regarding an alleged sexual assault which occurred while she was in high school. 3. The RO should obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. If such records are unavailable, the file should include a notification to that effect. 4. The RO should afford the veteran the opportunity to submit any additional evidence in support of her claim for service connection for a chronic acquired psychiatric disorder. With reference to the PTSD claim, the veteran is advised that this information is necessary to obtain supportive evidence of the stressful events and that she 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 she has provided sufficiently detailed information to make such request feasible. 5. 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). 6. 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. 7. Thereafter, if and only 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. All findings should be reported in detail. Any further indicated special studies should be conducted. The examiners should review the results of any testing prior to completion of the reports. The examiners must express an opinion as to the etiology of any mental disorder(s) no matter how diagnosed found on examination and whether or not the mental disorder(s) found is (are) related to service, or if preexisting service was (were) aggravated in service. Any opinions expressed must be accompanied by a complete rationale. 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. If PTSD is not diagnosed, yet the examiner finds the appellant has other psychiatric disorders, the examiner must express an opinion as to whether any such disorder(s) is or are related to the appellant's period of service on any basis, to include on the basis of aggravation. A complete rationale must be given for any opinion expressed and the foundation for all conclusions should be clearly set forth. 8. 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 and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 9. 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 she is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals