Citation Nr: 9933356 Decision Date: 11/29/99 Archive Date: 12/06/99 DOCKET NO. 98-06 836 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Joseph W. Spires, Associate Counsel INTRODUCTION The veteran served on active duty from September 1966 to April 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 1996 rating decision of the RO. FINDINGS OF FACT The veteran's claim of service connection for PTSD is plausible. CONCLUSION OF LAW The veteran has submitted evidence of a well-grounded claim of service connection for PTSD. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, one who submits a claim for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter the "Court") has further defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that 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). The regulations concerning the adjudication of claims involving entitlement to service connection for PTSD have changed. In June 1999, revised regulations concerning PTSD were published in the Federal Register which reflected the decision of the Court in Cohen v. Brown, 10 Vet. App. 128 (1997). The changes to 38 C.F.R. § 3.304(f) were made effective the date of the Cohen decision. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with the provisions of 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 64 Fed. Reg. 32,807-32808 (1999) (codified at 38 C.F.R. § 3.304(f)); Cohen v. Brown, 10 Vet. App 128 (1997). To establish a well-grounded claim of service connection for PTSD, there must be medical evidence showing a diagnosis of PTSD, lay evidence of a stressor in service (presumed credible for purposes of well-groundedness), and medical evidence of a nexus between the diagnosis and stressor. See Cohen v. Brown, 10 Vet. App. at 137. Here, the record includes numerous VA medical records which establish that the veteran has a diagnosis of PTSD secondary to a traumatic in-service rape. As the veteran's testimony, for the purposes of well-groundedness, is competent evidence to establish an in-service stressor, and because there is a current diagnosis of PTSD establishing a nexus between the diagnosis and the stressor, the Board finds the claim of service connection for PTSD to be well grounded. 38 U.S.C.A. § 5107. ORDER As the claim of service connection for PTSD is well grounded, the appeal is allowed to this extent, subject to further action as discussed hereinbelow. REMAND VBA's Adjudication Procedure Manual, M21-1, Part III, 5.14(b)(3) provides, "In cases where available records do not provide objective or supportive evidence of the alleged in[-]service traumatic stressor, it is necessary to develop for this evidence." The adjudication manual also provides, "If a VA examination or other medical evidence establishes a valid diagnosis of PTSD, and development is complete in every respect but for confirmation of the in[-]service stressor, contact [the United States Armed Services Center for the Research of Unit Records]." The record indicates that RO has made no attempts to obtain corroborating evidence of the veteran's alleged stressors from this agency. As explained by the Court in Patton v. West, 12 Vet. App. 272 at 280 (1999), "in personal-assault cases the Secretary has undertaken a special obligation to assist a claimant, here one who has submitted a well-grounded claim, in producing corroborating evidence of an in-service stressor." Indeed, the Court held that this special obligation rendered non- personal assault PTSD evidentiary requirements inoperative in the context of personal assault PTSD cases. Id. Specifically, the requirement that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence,'" Moreau v. Brown, 9 Vet. App. at 396, and the requirement that "[a]n opinion by a mental health professional based on a postservice examination of the veteran cannot be used to establish the occurrence of the stressor," Cohen, 10 Vet. App. at 145, were held to be inoperative in the context of a personal assault PTSD case. Id. Additionally, the Court held that the M21-1, Part III, 5.14(c) requirement that the in-service stressor be shown by the "preponderance of the evidence" was inconsistent with the 38 U.S.C.A. § 5107(b). Id. The appropriate standard of proof is the equipoise standard, not the preponderance standard. Id. Furthermore, M21-1, Part III, 5.14(c)(2), states that because assaults are so extremely personal that many incidents are not reported, alternative evidence must be sought. For example, this alternative evidence includes military law enforcement records, which must be requested from the "unit at the military installation where the records may be located." M21-1, Part III, 5.14(c)(4)(b). Also, as indicated by the Court in Patton, "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." M21-1, Part III, 5.14(c)(9); 12 Vet. App. 272 at 281. Here, the record indicates that attempts to obtain corroborating evidence of the veteran's alleged stressors, as outlined in M21-1, Part III, 5.14(b) & (c), have been insufficient. For example, although the record contains extensive details of the veteran's in-service stressor, the RO has made no attempts to obtain corroborating evidence from the United States Armed Services Center for the Research of Unit Records. The record includes several lay statements as well as VA medical evidence which provide details of the various in- service stressors as described by the veteran. In a January 1996 PTSD Questionnaire, the veteran provided the date and location of the claimed rape. The veteran also provided an additional 20 handwritten pages of detail in a May 1996 PTSD Secondary to a Personal Assault Questionnaire. The record also included a June 1997 written statement from a man who claimed to be a drill instructor at the location during the time the veteran stated that he was raped. This statement included the dates he served as a drill instructor at Fort Carson, Colorado and that he remembered a meeting of all drill instructors with their battalion commanders in which they were "told that there had been some reported problems on the base of military personnel being sexually assaulted or harassed and they were trying to get more information." A May 1998 statement from the veteran even included what the veteran believed to be the name of the assailant. Additional detail is provided in the numerous medical evidence of record. The veteran indicated in an October 1997 statement that he might wish to have an additional hearing. Also, in a September 1999 statement, the veteran indicated that he has received disability benefits from the Social Security Administration (SSA) due to PTSD and severe depression related to a sexual assault. In light of the foregoing, the Board is REMANDING this case for the following actions: 1. The RO should take appropriate action once again to contact the veteran in order to request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for PTSD since service. After obtaining any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request, which have not been previously secured. 2. The RO should also take appropriate steps to contact the veteran in order to afford him another opportunity to provide additional information regarding the claimed stressors to which he was exposed during his period of service. He should provide specific details of the claimed stressful events during service, to include dates, places, detailed descriptions of the events, his service units, duty assignments and the names and other identifying information concerning any individuals involved in the events. The veteran is informed that the Court has held that requiring a claimant to provide this information to the VA does not represent an impossible or onerous task. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 3. The RO should also seek alternative corroborating evidence as provided in M21-1, Part III, 5.14(c) This should specifically include, but not be limited to, seeking military law enforcement records, which must be requested from the "unit at the military installation where the records may be located." M21-1, Part III, 5.14(c)(4)(b). 4. As the veteran has stated that he receives disability benefits from the SSA due to PTSD, the RO should obtain copies of any decision awarding SSA benefits and the medical records on which the decision was based. 5. Then, the RO should review the claims folder thoroughly and prepare a summary of all stressors alleged by the veteran. This summary of stressors, with specific details regarding the veteran's alleged stressors, and all associated documents, should be sent to USASCRUR, 7798 Cissna Road, Suite 101, Springfield, Virginia 22150-3197. That agency should be requested to provide any information which might corroborate the veteran's alleged stressors, including confirmation of the evidence described in the drill instructor's lay witness statement, and other pertinent reports pertaining to the alleged stressors. 6. The RO should also request clarification from the veteran regarding his wishes for an additional hearing, as indicated in an October 1997 statement. 7. After undertaking any additional development deemed appropriate, including another VA psychiatric examination (and an interpretation of any behavior changes in relationship to the medical diagnosis by a VA neuropsychiatric physician) if indicated, the RO should review the veteran's claim. Due consideration should be given to all pertinent laws, regulations, and Court decisions. If the benefit sought on appeal is not granted, the veteran and his representative should be issued a Supplemental Statement of the Case, which should include all pertinent laws and regulations, and be afforded a reasonable opportunity to reply thereto. The veteran 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). 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. STEPHEN L. WILKINS Member, Board of Veterans' Appeals