Citation Nr: 0007991 Decision Date: 03/24/00 Archive Date: 03/28/00 DOCKET NO. 96-27 666 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and A. E. ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had active service from March 1974 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1995 rating decision of the VARO in Los Angeles which denied entitlement to service connection for PTSD. FINDING OF FACT The veteran has provided statements regarding inservice sexual harassment and she has been given a diagnosis of PTSD attributable to inservice harassment. CONCLUSION OF LAW The claim of entitlement to service connection for 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 FINDING 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), 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) 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. 9671517 (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 inservice occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an inservice 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 2nd and 3rd 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 post service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service 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 may also be established under § 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. 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 inservice stressor, which in a PTSD claim is the equivalent of inservice incurrence or aggravation; and medical evidence of a nexus between service and the current PTSD. Gaines v. West, 11 Vet. App. 353, 357 (1998). In this case, the veteran has reported episodes of sexual harassment during her assignment at Kadena Air Base in Japan and she has been accorded a diagnosis of PTSD by VA mental health professionals. At the time of one evaluation by two psychologists in June 1998, it was noted that while she had experiences which predated her alleged harassment in the Air Force, she did provide a symptom picture that was described as consistent with a mild PTSD which seemed to have "attenuated" over the past two decades. The psychologists assumed that there was veracity to her claims of having been raped by her roommate's friend around the time of her father's funeral, followed by what was reported as very poor handling of the trauma by a psychiatrist who discounted the whole thing. The psychologists added that "then she may have been more prone to develop PTSD from the further harassment she alleges to have suffered during her short tour with the Air Force." The psychologists noted that what they found much more limiting of her capacity to function on a daily basis was her glaring personality disorder coupled with her chronic pain syndrome. Nevertheless, she was given an Axis 1 diagnosis of chronic, mild PTSD. The Axis 2 diagnosis was borderline personality disorder, with histrionic and self- defeating features. This followed psychological testing accorded the appellant in 1997 and examination by a VA psychologist in January 1998 in which it was noted that although she had had a traumatic experience before the military (namely her rape), she had recovered from this and had been able in the opinion of the examiner to relocate to California, to get married, and to function well prior to entering the service. It was stated "the extreme degree of sexual harassment and gender discrimination" to which she was subjected in the service "certainly" constituted a traumatic stressor. The examiner commented that she appeared to meet the criteria warranting the diagnosis of PTSD. In view of these reports and other medical evidence of record, the undersigned finds the claim is well grounded. Patton v. West, 12 Vet. App. 272 (1999). ORDER The claim of entitlement to service connection for PTSD is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for PTSD is well grounded, VA has a duty to assist the appellant in developing facts pertinent to her claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The appellant, in testimony given at a hearing before a hearing officer at the RO in March 1996, and in numerous communications of record, has disagreed with the reports of psychiatric evaluation of her done in March 1975 at the United States Air Force Clinic, Kadena Air Force Base, in Okinawa, APO San Francisco, 96239. These reports reflect a diagnosis of situational adjustment reaction reportedly manifested by continued emotional lability and instability, and inability to successfully adapt to a new environment in Japan and the separation from her husband who was stationed with the Air Force in the continental United States. The appellant has described these communications as "ludicrous." She asserts the psychiatrist who made the diagnosis of acute situational adjustment reaction in an hysterical personality did not base the findings on anything that was discussed during the evaluation. She maintains that the tactics her superiors used were a means to force her to accept an early discharge that she really did not want and they included gender discrimination, humiliation, threats, religious persecution, and unwelcome sexual demands. She adds VA has failed to read the reports of the Judge Advocate General who represented her in her attempt to protect herself and to file charges of gender discrimination against her commanding officer and her first sergeant. A review of the evidence which is of record reflects that on April 3, 1975, the appellant was counseled regarding a proposed action to separate her from the United States Air Force. The communication from the individual, a female captain in the Air Force, contains no reference to sexual harassment. The appellant also points out that the claims file is devoid of any records from the Protestant chaplain who was assigned to Kadena Air Base in early 1975. She has indicated in communications of record that she was seeing the chaplain for counseling during that time frame. The record shows that she was assigned to the 18th Avionics Maintenance Squadron (PACAF), APO San Francisco 96239, in the weapons control system section. The record also shows that the Judge Advocate General who reportedly assisted her during that same time frame was assigned to the Headquarters, 18th Combat Support Group (PACAF), APO San Francisco 96239. The Board notes that in the decision of Patton v. West, 12 Vet. App. 272 (1999), it was held that in a claim of service connection for PTSD as a result of personal assault, the development procedures of VA's Adjudication Procedure Manual M 21-1, Part III, paragraph 5.14(c) (February 20, 1996), must be strictly followed. Based on the above, the Board believes that further development is required in this case and it is therefore REMANDED for the following: 1. The veteran should be contacted and asked to provide as much additional detail as possible regarding her reported sexual harassment in service. She should also be asked to submit alternative sources of information to verify the claimed harassment. She should be informed that these alternative sources could include, but are not limited to, private medical records; civilian police reports; reports from crisis intervention centers; testimonials from family members, roommates, fellow service members, or clergy; and copies of any personal diaries or journals. Then with any necessary authorization from her, the RO should attempt to obtain copies of all treatment records identified by her which have not been previously secured. Any records received should be associated with the claims folder. 2. The RO should also attempt to obtain any reports of indicated visits by the appellant to the Judge Advocate General's office at the Headquarters, 18th Combat Support Group (PACAF) APO San Francisco 96239, in late 1974 and early 1975. Contact should also be made with the chaplain's office of the same unit to determine whether there might be any documentation confirming the appellant was seen by the Protestant chaplain during that same time frame. 3. Thereafter, if any claimed inservice incident is corroborated by the evidence or if otherwise deemed warranted, the veteran should be afforded a VA psychiatric examination. The claims file, a copy of this REMAND, and a list of the stressful incident or incidents found by the RO to be corroborated by the evidence must be provided to the examiner for review. The examiner must determine whether the veteran has PTSD, and, if so, whether the inservice stressful episodes found to be established by the RO are sufficient to warrant the diagnosis of PTSD. The examiner should be instructed that only the verified events listed by the RO may be considered as stressors. If PTSD is diagnosed, the examiner must explain whether and how each of the diagnostic criteria is or are satisfied. Also, if PTSD is diagnosed, the examiner must identify the stressors supporting the diagnosis. The examiner should also comment on and indicate agreement or disagreement with the 1998 psychiatric reports to the effect that while the appellant's psychiatric problems might have begun in childhood, the preexisting pathology was likely exacerbated due to her experiences during active service. The complete rationale must be given for any opinion expressed and the foundation of all conclusions should be clearly set forth. 4. Thereafter, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examination does not include all opinions requested, appropriate corrective action is to be implemented. The RO must further ensure that all development mandated by the provisions of M 21-1, Part VI, Change 65 (October 28,1998), is completed in full. Following completion of this action, the RO should review the evidence and determine whether the claim for service connection may now be granted. If the decision remains adverse to the veteran, then a supplemental statement of the case should be issued to the veteran and her representative. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if otherwise in order. The veteran need take no further action until she is informed. The purpose of this REMAND is to obtain additional information. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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. Mark D. Hindin Member, Board of Veterans' Appeals