Citation Nr: 0001599 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 96-00 036 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney WITNESSES AT HEARING ON APPEAL The veteran and his brother ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from May to September 1952. In July 1993, the Board of Veterans' Appeals (Board) denied service connection for PTSD. In November 1993, the veteran submitted an application to reopen the claim for service connection for PTSD. A June 1995 RO rating decision determined that there was no new and material evidence to reopen this claim. The veteran appealed this decision to the Board, and in a March 1997 decision the Board found that the veteran had not submitted new and material evidence to reopen the claim for service connection for PTSD. The veteran appealed the March 1997 Board decision to 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). In a September 1997 joint motion to the Court, the parties requested that the March 1997 Board decision be vacated and remanded for readjudication. In a September 1997 order, the Court granted the parties' motion, and the case was thereafter returned to the Board. In a November 1997 decision, the Board found that the veteran had submitted new and material evidence to reopen the claim for service connection for PTSD, and remanded the case to the RO for additional development and adjudication of the issue of service connection for PTSD on the merits. In a July 1998 rating decision, the RO denied service connection for PTSD. In September 1998, the Board denied the veteran's appeal for service connection for this disorder, and he then appealed to the Court and appointed Kenneth M. Carpenter, attorney at law, to represent him. In a March 1999 joint motion to the Court, the parties requested that the September 1998 Board decision be vacated and that the issue of service connection for PTSD be remanded to the RO for additional development. In a March 1999 order, the Court granted the parties motion, and the case was thereafter sent to the Board. In 1999, the Board asked the veteran's representative whether he wanted to submit additional argument and/or evidence with regard to the veteran's claim. A written argument dated in November 1999 was submitted by the counsel for the veteran. REMAND Copies of the March 1999 joint motion and Court order, and the November 1999 written argument of the representative have been placed in the veteran's claims folder. After review of the record and Court instructions, it is the determination of the Board that additional evidentiary development and adjudicative action is required, as noted below. In view of the foregoing, the case is REMANDED to the RO for the following actions: 1. The RO should notify the veteran of the evidence needed to verify his claimed inservice stressor to support his claim for service connection for PTSD and to assist in the identification of any other potential sources of information in order to obtain this verification in accordance with the provisions of M21-1, Part III, Par. 5.14c, Change 74, April 30, 1999. He should be asked to provide any specific information with regard to the alleged inservice stressor and sources of treatment, such as the exact name of his supervisor, Chief Fuger, and with regard to his hospitalization at the Pawtucket Memorial Hospital in Rhode Island for a suicide attempt in 1953. The RO should then obtain copies of all identified information not already in the record, after obtaining any needed release documents, and undertake the development requested in the March 1999 Court order and the November 1999 written argument of the representative. 2. The veteran should then be scheduled for a VA psychiatric examination by a psychiatrist who has not previously seen him for assistance in the interpretation of the overall evidence of record and expression of an opinion as to whether it is at least as likely as not that the overall evidence of record, including the veteran's behavior since discharge from service, is consistent with the incurrence of a sexual assault in service in accordance with the provisions of M21- 1, Part VI, Par. 11.38b(2) (attached for the examiner's convenience as an addendum at the end of this Remand). All indicated studies should be performed and all indicated findings reported in detail. The examiner should give a fully reasoned opinion and support the opinion by discussing medical principles as applied to the specific medical evidence in the veteran's case. In order to assist the psychiatrist in providing the requested information, the claims folder must be made available to the psychiatrist and reviewed prior to the examination. 3. After the above development, the RO should review the claim for service connection for PTSD. If action remains adverse to the veteran, an appropriate supplemental statement of the case should be sent to him and his attorney. The veteran and his attorney should be provided with the opportunity to respond to the supplemental statement of the case before the file is returned to the Board. 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. J. E. Day Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1998). ADDENDUM VA Adjudication Procedure Manual M21-1, Part VI, par. 11.38 b (2) (2) Evidence of Personal Assault. Personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking. If the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an in- service stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. Examples of behavior changes that might indicate a stressor include (but are not limited to): Visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; Sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; Lay statements indicating increased use or abuse of leave without an apparent reason such as family obligations or family illness; Changes in performance and performance evaluations; Lay statements describing episodes of depression, panic attacks, or anxiety but no identifiable reasons for the episodes; Increased or decreased use of prescription medications; Increased use of over-the-counter medications; Evidence of substance abuse such as alcohol or drugs; Increased disregard for military or civilian authority; Obsessive behavior such as overeating or undereating; Pregnancy tests around the time of the incident; Increased interest in tests for HIV or sexually transmitted diseases; Unexplained economic or social behavior changes; Treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; and Breakup of a primary relationship. In personal assault claims, 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. (emphasis supplied)