Citation Nr: 0000834 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 99-06 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from January 1979 until February 1981. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a rating decision in June 1998 of the Chicago, Illinois Regional Office (RO) which denied service connection for an acquired psychiatric disorder, to include PTSD. FINDING OF FACT The record contains competent current diagnoses of PTSD and major depressive disorder related by competent (medical) opinion to sexual assault in service (with major depressive disorder felt to be related to PTSD), rendering the claim for service connection as plausible. CONCLUSION OF LAW The claim of entitlement to service connection for an acquired psychiatric disorder, to include 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, 524 U.S. 940 (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 to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 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). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. After a thorough review of the evidence, the Board concludes that the veteran has presented a well-grounded claim for service connection for an acquired psychiatric disorder, to include PTSD. The record contains competent evidence of chronic symptoms of depression in service as well as a current diagnosis in this regard. As well, the appellant asserts that she was sexually assaulted during active duty and PTSD has been clinically linked to this claimed event by competent clinical opinion on VA examination in January 1998. As the record contains competent evidence of a nexus between currently identified psychiatric disability and the veteran's active military service, the veteran has met her burden with respect to submission of a plausible claim for service connection for an acquired psychiatric disorder, to include PTSD. ORDER The claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is well grounded, and the appeal, to this extent, is granted. REMAND Because the claim of entitlement to service connection for an acquired psychiatric disorder, to include 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). The veteran asserts that she now has PTSD on account of a sexual assault during service. She contends that she reported that incident but that nothing was done about it. It is maintained that she has had chronic depression and symptoms consistent with psychiatric trauma since that since that time resulting in PTSD for which service connection should now be granted by the Board. The Board notes that while the veteran has been diagnosed by multiple clinical personnel as having PTSD related to a sexual assault, as well as a major depressive disorder secondary to PTSD, it is shown that no stressor has yet been verified to date. In this regard, the Board notes that the veteran has not contended a stressor event related to combat service. A review of the record discloses that no service administrative data are of record and it is not indicated in the claims folder whether there has been any attempt to obtain such information. As the appellant has stated in the record that she reported the sexual assault and received an examination in this regard, such records could verify the reported stressors. As such the Board believes that further development for this claim is necessary in this regard. Additionally, a competent medical opinion would be useful as to whether current symptoms of depression are at least as likely as not related to symptoms in service. In this regard, the Board notes that a VA psychological examiner stated upon examination of the veteran in January 1998 that the claims folder was not available for review at that time. In the Statement of the Accredited Representative in Appealed Case dated in September 1999, the representative was of the opinion that the examination was inadequate as a result thereof and that a new examination is in order as a result thereof. The Board finds that a review of the service medical records, with evidence of significant treatment for psychiatric symptomatology, would be useful for a more accurate assessment of the current claim. The fulfillment of the VA's statutory duty to assist the appellant includes providing additional VA examination by a specialist when indicated, and conducting a thorough and contemporaneous medical examination, which takes into account the records of prior medical treatment, so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). In light of the above, and in order to give the veteran every consideration with respect to due process, this case is REMANDED for the following actions: 1. The RO should contact the veteran and request that she identify the names, addresses, and approximate dates of treatment for all health care providers, to include her psychiatrist in Fort Riley, Kansas, from whom she has received treatment for depression and/or PTSD, at any time since service. With any necessary authorization from the veteran, the RO should attempt to obtain those records identified by the veteran which are not currently of record. 2. The RO should make a request for all of the veteran's service administrative and personnel records from the appropriate authorities and associate them with the claims folder. 3. Thereafter, if the RO determines that the record establishes the occurrence of any claimed stressful event, or that certain stressors must be presumed, the RO must specify what stressor or stressors it has determined are established by the record, or must be presumed. In reaching this determination, the RO should address any credibility questions raised by the record. 4. Subsequent thereto, the appellant should be scheduled for a special VA examination to be conducted by a board- certified VA psychiatrist who has not previously examined her, to determine the nature and etiology of any and all psychiatric disability now indicated. All necessary tests and studies, including psychological testing, should be performed, and all clinical manifestations should be reported in detail. The RO must furnish the examiner with a complete and accurate account of the stressor or stressors that it has determined is established by the record, and the examiner must be instructed that only the event(s) as confirmed by the record may be considered for the purpose of determining whether an inservice stressor(s) was severe enough to have caused the current psychiatric symptoms, and whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied by the inservice stressor(s). The examiner must be provided with the appellant's claims folder and a copy of this remand for review prior to conducting the examination. In addition, the examiner is requested to provide an opinion as to whether the veteran's psychiatric symptoms are unequivocally the result of PTSD, or are the result of some other psychiatric disability. Based on a review of all medical documentation and history on file, including the service medical records, the examiner should, 1) discuss and reconcile the prior opinions and findings with respect to any relationship between the psychiatric symptoms noted in service and current psychiatric disability, and 2) provide an opinion as to whether any current psychiatric condition was initially manifested in service, or is at least as likely as not etiologically related to service or clinical manifestations in service. The diagnoses rendered should conform to the psychiatric nomenclature and diagnostic criteria contained in DSM-IV. The examination report should set forth in a clear, comprehensive, and legible manner all pertinent findings, and should include complete rationale for the opinions expressed. The examination report should clearly reflect whether a review of the claims folder was performed. The examination report should be returned in a legible narrative format. 5. Following completion of the foregoing, the RO must review the claims folder and ensure that the requested development has been completed in full. If the examination report does not include fully detailed descriptions of 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). 6. The appellant should be given adequate notice of the examination, to include advising her of the consequences of failure to report. If she fails to appear for the examination, this fact should be noted in the claims folder and a copy of the examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims folder. 7. Following completion of the requested development, the agency of original jurisdiction should readjudicate the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, with consideration of all applicable regulations, to include 38 C.F.R. § 3.304(f) (1999), to determine whether or not service connection may be granted. If action remains adverse to the appellant, she should be furnished a supplemental statement of the case and be given the opportunity to respond. The case should then be returned to the Board for further appellate consideration. The purpose of the REMAND is to obtain additional development. The Board does not intimate any opinion as to the merits of the case either favorable or unfavorable at this time. The veteran is free to submit any additional evidence she desires to have considered in connection with her current appeal. No action is required of the appellant until she is notified. 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. U. R. POWELL Member, Board of Veterans' Appeals