Citation Nr: 0005220 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 97-00 229A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA)Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had active service during the Vietnam era including confirmed service from June 1965 to January 1968. This appeal arises from an October 1996 letter in which the Waco, Texas, VARO informed the veteran that his claim for service connection for PTSD was being denied. The veteran also perfected an appeal as to his request for overpayment of pension benefits in the amount of $38,575. In a decision dated in February 1997, the Committee on Waivers and Compromises, waived repayment of the indebtedness, and this issue is no longer before the Board of Veterans' Appeals (Board). FINDINGS OF FACT The veteran has reported in-service sexual assault and sexual harassment and there is competent medical evidence linking such stressors to a current diagnosis of PTSD. CONCLUSION OF LAW The claim for service connection for PTSD is well grounded. 38 U.S.C.A. §5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION A PTSD claim is well grounded if there is medical evidence of a current disability, lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a PTSD case is the equivalent of in-service incurrence or aggravation; and medical evidence of a nexus between service and the current PTSD. Gaines v. West, 11 Vet. App. 353, 357 (1998). Where there is a clear diagnosis of PTSD, an appellant's assertions of stressors generally accepted as true for purposes of determining whether the claim is well grounded. Falk v. West, 12 Vet. App. 402, 404 (1999); but see Samuels v. West, 11 Vet. App. 11 Vet. App. 433 (1998) (VA is not required to accept the truthfulness of inherently incredible assertions). The initial claim for service connection for PTSD was not received until January 1996. At that time the veteran reported that during "refresher" training in San Diego, California, in 1966, he was sexually assaulted by an individual who was later arrested by the police. He indicated that, the day following the reported assault, the police picked him up at his ship for identification of the suspect. He related that the ship to which he was assigned at the time was the U.S.S. Eversole (DD-79). In July 1996 the RO sent a letter to "San Diego Police Records" in San Diego, California, asking for copies of the investigating officer's report regarding the claimed incident. The letter was returned to the RO as "unclaimed." Subsequent thereto, in a December 1996 communication, a social worker at a local Vet Center indicated the veteran had been seen at that facility about 13 times since August 1996. It was indicated that the veteran identified symptoms of sleep disturbance, depression, occasional flashbacks, and hypervigilance, all noted to be actively consistent with PTSD due to sexual trauma. The veteran was seen by Arun D. Patel, M.D., in December 1996 and the physician indicated that after reviewing the veteran's history, the diagnostic impressions on Axis I were: Anxiety disorder, not otherwise specified, versus PTSD; history of recurrent major depression with psychotic features; history of polysubstance abuse disorder; and rule out anxiety and mood disorders related to polysubstance abuse disorder. The Board finds that the veteran's statements regarding an in-service sexual assault and sexual harassment, in conjunction with the medical evidence which reflects a current diagnosis of PTSD linked to sexual assault, are sufficient to well ground his claim. See 38 U.S.C.A. § 5107(a) (West 1991); Patton v. West, 12 Vet. App. 272 (1999). In this regard the Board notes that the only reported sexual assault occurred during service. ORDER The claim for service connection for PTSD is well grounded. REMAND In Patton, the United States Court of Appeals for Veterans Claims (Court) reprimanded VA for failing to follow the evidentiary procedures for PTSD claims based on personal assault that were established in February 1996 in VA Adjudication Procedure Manual M21-1, Part III, 5.14 (c) (Feb. 20, 1996) (updated April 30, 1999). The Court found the need to gather information from secondary sources in cases of non- combat related PTSD claims. While it appears that the RO attempted to comply with some of the M21-1 requirements, by sending the appropriate development letter to the veteran, and attempting to contact the pertinent police department, it does not appear that ships logs and the veteran's personnel records have been sought, it also does not appear that any further efforts to contact the San Diego or military police have been made. While the Board appreciates the efforts of the RO to develop this claim, and notes the veteran's apparent failure to cooperate by completing the RO's request for additional information, the Board finds that a decision at this point, without additional development, could not withstand judicial scrutiny. In view of the foregoing, the Board REMANDES this case for the following: 1. The veteran should be allowed to submit additional lay and medical evidence in support of his claim. The RO should again send him a request for information in support of the claim for service connection for sexual assault. The veteran is advised that completion of the request for information is in his interest and will assist in obtaining information that could lead to the grant of his claim. 2. The RO should attempt to obtain, any legal records available from civilian and military facilities pertaining to the alleged sexual assault in 1966. In particular, the San Diego Police Department in San Diego, California, should be contacted and requested to state whether or not there are any records available from 1966, and, if so, whether information pertaining to the report of investigation is available. Any records available should be obtained and associated with the claims file. The Department of the Navy should be asked to provide the veteran's complete service personnel records and ships logs for the U.S.S. Eversole for the Summer and Fall of 1966. Any records received should be associated with the claims folder. 3. Thereafter, the veteran should be accorded an appropriate examination to determine whether he has PTSD, and if so, to determine the nature of the stressors supporting that diagnosis. The examiner should elicit from the veteran a detailed account of the in-service stressor to which he was subjected, to include the sexual assault and sexual harassment, for the purpose of determining whether exposure to said stressors has resulted in current psychiatric symptoms. The examiner should diagnose all of the veteran's acquired psychiatric disorders, and express an opinion as to the etiology of each such disorder. An opinion should be given as to the degree of probability that each psychiatric disorder is the product of the in-service assault or harassment noted above, or is the result of other service-related incidents. The examiner should further make a specific determination as to whether the diagnostic criteria to support a diagnosis of PTSD have been satisfied. The examination should include all appropriate tests and evaluations. 4. Thereafter, the RO should review the evidence, ensuring that it has applied the provisions of VA Adjudication Manual M21-1, Part III, 5.14 (c) (April 30, 1999), to ensure that it is in compliance with the directives of this remand. The RO and the veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) The veteran and his representative should be given a supplemental statement of the case and given an opportunity to respond thereto. The case should then be returned to the Board for 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 notified by the RO. 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). The veteran is advised that the examination requested in this remand is necessary to adjudicate his claim and that a failure, without good cause, to report for scheduled examinations, could result in the denial of his claim. 38 C.F.R. § 3.655 (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. Mark D. Hindin Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1999).