Citation Nr: 9934684 Decision Date: 12/13/99 Archive Date: 12/16/99 DOCKET NO. 98-10 230 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include major depressive disorder. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The record indicates that the veteran had active military service from February 1978 to March 1984. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a rating decision of March 1998, by the Columbia, South Carolina Regional Office (RO), which denied the veteran's claim of entitlement to service connection for a psychiatric disorder, to include major depressive disorder, and PTSD. The notice of disagreement with this determination was received in April 1998. The statement of the case was issued in April 1998. The substantive appeal was received in July 1998. The veteran appeared and offered testimony at a hearing before a hearing officer at the RO in February 1999. A transcript of the hearing is of record. A medical statement was submitted at the hearing. A supplemental statement of the case was issued in March 1999, which confirmed the denial of the veteran's claim for service connection for a psychiatric disorder, to include major depressive disorder, and PTSD. The appeal was received at the Board in July 1999. The veteran has been represented throughout her appeal by The American Legion, which submitted written argument to the Board in November 1999. FINDINGS OF FACT 1. The veteran has been diagnosed with a psychiatric disorder, variously diagnosed as major depressive disorder and bipolar affective disorder; her claim for a psychiatric disorder is supported by sufficient competent evidence to make the claim plausible and capable of substantiation. 2. The veteran has a current medical diagnosis of PTSD, and a treatment provider has related the diagnosis to a claimed in-service sexual assault; thus, the veteran's claim for service connection for PTSD is plausible under the law. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for a psychiatric disorder, to include major depressive disorder, is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303 (1999). 2. The veteran's claim of entitlement to service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual background The pertinent fact in this case may be briefly described. The veteran's service medical records indicate that she was seen on several occasions from July 1978 to November 1978 for recurrent vaginal infections, of unknown etiology. She was seen in January 1981 for a mental health evaluation, at the request of her unit at Tinker Air Force Base. The records reflect that, following a mental health evaluation in February 1981, it was noted that there was no evidence of a psychosis or psychoneurotic disorder; the impression was adjustment reaction of adult life, mild to moderate, resolving. The veteran was next seen in August 1982, complaining of "nerves;" she reported being under severe stress due to recent marital problems. The veteran was described as tense and anxious; she was able to converse, was well-oriented, and was in control of herself. The assessment was acute stress anxiety. The service medical records indicate that the veteran was later seen in August 1982, at which time it was noted that she had been seen in the emergency room the previous night and treated with Valium, without benefit. She complained of increased nervousness since her divorce had been finalized five days previously; she also reported decreased sleep, and inability to concentrate. The assessment was acute separation anxiety. On the occasion of her separation examination in March 1984, the veteran reported treatment for a skin disorder related to nervousness; clinical evaluation was negative for any findings of a psychiatric disorder. The veteran's application for service connection, on VA Form 21-526, was received in December 1997. Submitted in support of her claim was a completed PTSD questionnaire, wherein she reported having been raped by a serviceman and a friend in April 1978, the day of her arrival at Shaw Air Force Base. The veteran indicated that the only person in whom she had confided was her husband at the time, who blamed her for the incident. She stated that, as a result, she had never told anyone about the incident until she remarried in 1984, and told her second and current husband. The veteran stated that, as a result of the incident, she experienced episodes of depression and anxiety, changes in her performance evaluations, obsessive behavior, and substance abuse. Of record are VA outpatient treatment reports dated from May 1993 through May 1995, which show that the veteran received clinical attention and treatment for a psychiatric disorder, variously diagnosed. A treatment note dated in May 1993 reflect a diagnosis of somatized anxiety. Among the records is a medical statement from a physician at the Griffiss Air Force base, dated in August 1994, indicating that the veteran had been receiving treatment for various problems since October 1993; he stated that, over the past months, the veteran showed increasing signs of depression and anxiety and the symptoms were getting progressively worse. The physician stated that it was his opinion that the veteran was disabled due to her depression; he also noted that she had been prescribed medication for depression. A treatment note dated in August 1994 reflected a diagnosis of depression and anxiety. The veteran was afforded a VA compensation examination in March 1998, at which time it was noted that her past psychiatric history was significant for anxiety and depression. It was reported that she had seen a psychiatrist in the past and had been on medications; she was last seen by a psychiatrist in 1995. The veteran stated that, after she entered the Air Force; she attended "tech school" for about six weeks; then, on a cross-country trip to Shaw Air Force base, she accepted a ride from a military individual who took her to his home with a friend, where she was raped by both men. She indicated this incident had occurred in April 1978. The veteran stated that she was hurt, humiliated, and scared. She said she did not call the authorities; rather, she called her husband, who blamed her for the rape. She also reported that she was subsequently stationed at Tinker Air Force Base in Oklahoma with her husband, who verbally and physically abused her; she stated that she began to drink heavily. She eventually divorced her husband. At the time of her discharge from service, the veteran was living with her second husband, to whom she was now married. The veteran indicated that she currently had difficulties with her mood as well as remembrances of the rape. She also indicated that, while she did not have any flashbacks, she had had nightmares about the incident in the past. She also reported crying spells on occasion, occasional helplessness and hopelessness, memory problems, and intermittent sleep difficulty. Following a mental status examination, the examiner stated that the veteran had some traits consistent with PTSD, although she did not fully meet the criteria for a diagnosis of PTSD under DSM-IV (the Diagnostic and Statistical Manual of Mental Disorders, 4th ed., 1994). She did not display markedly clinically significant distress in social and occupational areas of functioning, nor did she have enough symptoms to qualify for a diagnosis. She had been exposed to traumatic event in which threatened death or serious injury occurred; however she did not persistently reexperience the event. The examiner reported that the veteran did have some avoidance of stimuli, but not three of the seven criteria needed for a diagnosis. The examiner stated that the veteran currently met the criteria for major depressive disorder, single episode, based on her symptomatology in the past; he indicated that she had been treated for depression in the past and currently was on antidepressant medication, with some benefit. The pertinent diagnosis was major depressive disorder, single episode. Received in April 1998 were VA outpatient treatment reports dated from January 1998 to February 1998, which show that the veteran was seen for complaints of depression, and an increased feeling of hopelessness and helplessness; she denied any thoughts of suicide. The veteran reported a history of sexual assault at age 18; the assessment was anxiety disorder. At her personal hearing in February 1999, the veteran testified that she was sexually assaulted while stationed at Shaw Air Force base in April 1978; she reiterated that she told her husband at the time, but he blamed her for the incident. The veteran related that she then began drinking heavily, and was subjected to several incidents of sexual abuse during service. She testified that she was also physically and sexually abuse by her then-husband; as a result, she eventually terminated the marriage. She further testified that, although she never reported the rape to military officials, she talked to a chaplain about the incidents in 1990. She indicated that she was diagnosed with, and received treatment for, anxiety at Griffiss Air Force Base in 1990; she also went into rehabilitation and sought counseling for her problems. The veteran also indicated that she was diagnosed with a depressive disorder and attention deficit disorder in 1995. The veteran stated that she did not have any psychiatric problems prior to entering military service. The veteran indicated that she was currently receiving treatment at the VA hospital in Charleston, and that a Dr. Darnell has related her current problems with military service. Submitted at the hearing was a medical statement from Brooks L. Oglesby, RNC, CARN, BSN, Psychiatric Case Manager at the VAMC in Charleston, dated February 11, 1999, indicating that the veteran had been an active patient at the clinic for over one year; he also indicated that she had a diagnosis of PTSD and bipolar affective disorder, type 2. Mr. Oglesby reported that the veteran had a past history of severe depression and anxiety that she related to her military experiences. He also reported that the veteran was treated on many occasions for the reported conditions while on active duty in the Air Force; her first mental health evaluation was requested in 1981 by her unit, and psychiatric testing was done at that time. Mr. Oglesby also noted that the veteran described incidences of sexual abuse while in the military and felt that this was directly related to her substance abuse and psychiatric conditions. Mr. Oglesby stated that it was his opinion that the veteran's past sexual abuse had a direct bearing on her present psychiatric and substance abuse conditions. II. Legal analysis Service connection may be awarded for a disease or disability incurred or aggravated, or presumed to have been incurred in the line of duty while serving in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1999). Where a veteran served ninety days or more during a period of war or during peacetime after December 31, 1946, and a psychotic disorder becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may also be granted for a disease first diagnosed after service, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). 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). The threshold question to be answered is whether the veteran has presented evidence of a well-grounded claim. To sustain a well-grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The determination of whether a claim is well-grounded is legal in nature. King v. Brown, 5 Vet. App. 19 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). To be well grounded, a claim must be accompanied by supportive evidence, and such evidence must justify a belief by a fair and impartial individual that the claim is plausible. Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet.App. 359 (1995). In order for a claim for service connection to be well- grounded, there must be competent evidence of a 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 service injury or disease and the current disability (medical evidence). The nexus requirement may be a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A. Service connection for a psychiatric disorder, to include major depressive disorder At the outset, the Board finds that the evidence presented above shows that the veteran has met her burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that her claim for service connection for a psychiatric disorder, to include major depression, is well-grounded; that is, the claim is not implausible. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In the present case, the veteran has alleged that service connection for a psychiatric disorder, including major depressive disorder, is in order because the condition had its onset in service. The service medical records show that the veteran received treatment for psychiatric symptoms, including depression and anxiety, albeit they were diagnosed as being due to an adjustment to adult life and marital problems and not an acquired psychiatric disability. The veteran has a currently diagnosed psychiatric disorder, variously diagnosed as major depressive disorder and bipolar affective disorder; and her medical provider, in a medical statement in February 1999, offered a nexus between that disability and military service. Accordingly, the Board thus finds the claim of service connection for a psychiatric disorder, to include major depressive disorder, to be well grounded. To that extent, the appeal is granted. B. Service connection for PTSD 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 an in-service sexual assault. The veteran's statements with respect to her in- service stressor 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). There is also of record a medical opinion to the effect that the veteran currently has PTSD which is related to her experience during service. This statement must also 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 her in-service stressor 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 this stressor, the veteran's claim for service connection for PTSD is well grounded. To that extent, the appeal is granted. 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 PTSD will be further addressed below in the remand portion of this decision. ORDER The veteran's claim for service connection for a psychiatric disorder, to include major depressive disorder, is well grounded. To this extent only, the appeal is allowed. The veteran's claim for service connection for PTSD is well- grounded. To this extent only, the appeal is allowed. REMAND Given that the veteran has presented evidence, which, as discussed, establishes well-grounded claims for service connection, the Board observes that VA has a further obligation to assist her in the development of evidence to support her claims. See 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998). However, with regard to the veteran's claims, particularly the PTSD claim, once it has been determined to be well grounded, that does not necessarily mean the claim will be granted. The United States Court of Appeals for Veterans Claims has emphasized that - even though . . . the appellant has presented a well-grounded claim for service connection for PTSD, "eligibility for a PTSD service-connection award requires" more; specifically, "(1) [a] current, clear medical diagnosis of PTSD . . . ; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor." Gaines v. West, 11 Vet.App. 353, 357 (1998), citing Cohen, supra, and Suozzi v. Brown, 10 Vet.App. 307 (1997) (emphasis in original). While the claims file includes a diagnosis of PTSD, this diagnosis of PTSD was based upon a reported in-service stressor that has not been verified, i.e., the alleged in- service rape. Verification of the veteran's aforementioned reported in-service stressor(s) is necessary. The question of whether the veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. See Zarycki v. Brown, 6 Vet.App. 91, 98 (1993); Wood v. Derwinski, 1 Vet.App. 190 (1991), aff'd on reconsideration, 1 Vet.App. 406 (1991); Wilson v. Derwinski, 2 Vet.App. 614 (1992). In sum, whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators, and whether any stressors that occurred were of sufficient gravity to cause or to support a diagnosis of PTSD is a question of fact for medical professionals. See Zarycki, supra. 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. The record shows that, in addition to PTSD, there are also other psychiatric diagnoses of record, including major depressive disorder and bipolar disorder. Moreover, besides the claimed in-service rape, the veteran has asserted, without offering specifics and without clearly relating them to PTSD, that there were other incidents of sexual abuse in service. 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, Part III, 5.14(c) (Feb. 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). 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, supra. At her personal hearing in February 1999, the veteran indicated that she was currently receiving treatment at the VA hospital in Charleston, and that Dr. Darnell has related her current problems with military service. The Board notes that records generated by VA medical facilities are considered constructively of record in appeals before the Board, and therefore it is necessary for the RO to obtain these records and associate them with the file. See Bell v. Derwinski, 2 Vet.App. 611, 613 (1992). In order to give the veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is desirable. Accordingly, this case is hereby REMANDED to the RO for the following action: 1. The RO should contact the veteran and request that she provide the names and addresses of all health care providers, VA and non-VA, inpatient and outpatient, who have treated or evaluated her for symptoms related to psychiatric illness since service. The RO should contact Dr. Darnell, as referred to in the February 1999 hearing. 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. 2. The RO should take the appropriate action in order to locate any pertinent medical records from Griffiss Air Force Base, where the veteran was treated as a dependent spouse from 1990 to 1995. 3. The RO should afford the veteran the opportunity to submit any additional evidence in support of her claim for service connection for PTSD, to include statements from relatives. She should be asked to provide any additional information possible regarding the stressful event(s) claimed to have caused PTSD and to identify potential alternative sources for supporting evidence regarding the stressors she 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, to include the claimed rape and any additional incidents of sexual abuse claimed to have been factors in the development of PTSD. 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 the veteran has provided sufficiently detailed information to make such requests feasible. 4. 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). 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. Thereafter, if any claimed in-service stressor is corroborated by the evidence or if otherwise deemed warranted, the veteran should be examined by a VA psychiatrist for the purpose of determining the nature and etiology of any psychiatric disorder that may be present. The claims file, to include a 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 indicated tests and studies should be performed. 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 apply the DSM-IV, 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. The psychiatrist should also opine whether it is at least as likely as not that any current psychiatric disorder is causally related to any psychiatric findings or manifestations during service. A complete rationale must be given for any opinion expressed, and the foundation for all conclusions should be clearly set forth. 7. Regarding the notice to the veteran of the examination scheduled in connection with this remand, the RO should provide the veteran with information sufficient to inform her of the consequences of a failure to report for any scheduled examination without good cause. 38 C.F.R. § 3.655 (1999). 8. Thereafter, the RO should review the claims folder and ensure that all of the foregoing requested 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 report does not include all tests reports, or fully detailed descriptions of all pathology or adequate responses to the specific opinions requested, the report must be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (1999); See Ardison v. Brown, 6 Vet.App. 405, 407 (1994); Abernathy v. Principi, 3 Vet.App. 461, 464 (1992); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). 9. The veteran's claims for service connection for a psychiatric disorder, to include major depressive disorder, and PTSD should then be readjudicated; in so doing, the RO should consider all pertinent law, regulations, judicial decisions, and M21-1, Part III, 5.14(c). 10. If the decision remains adverse to the veteran, both she and her representative should be furnished a supplemental statement of the case which summarizes the pertinent evidence, all applicable law and regulations, including M21-1, Part III, 5.14(c), and reflects detailed reasons and bases for the decision. They should then be afforded the applicable time period in which to respond. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the veteran until she is notified by the RO. By this remand, the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purposes of this REMAND are to further develop the record and to accord the veteran due process of law. 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). 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. ANDREW J. MULLEN Member, Board of Veterans' Appeals