Citation Nr: 0006985 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-10 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for post-traumatic stress disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. L. Wright, Counsel INTRODUCTION The veteran had active service from March to September 1973. This appeal arises from a September 1997 rating decision of the Muskogee, Oklahoma, Regional Office (RO) which denied service connection for post-traumatic stress disorder (PTSD). The veteran appealed this determination. By letter of September 1998, the veteran requested that his claims file be transferred to the Oakland, California, RO due to a change in his residence. A hearing was held before the Board of Veterans' Appeals (Board) in July 1999 sitting in Oakland, California. This hearing was conducted by a Member of the Board, who was designated to preside over this hearing by the Chairman of the Board pursuant to 38 U.S.C.A. § 7102(a) (West Supp. 1999), and who will make the final determination in this appeal. FINDING OF FACT The evidence of record includes the veteran's statements as to stressful events in military service and psychological reports which contain current diagnoses of PTSD which are related to the veteran's service. CONCLUSION OF LAW The veteran's claim for service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran was given a comprehensive medical examination upon his entrance into active service in March 1973. He did not report any prior medical history of a psychiatric disorder. On examination, his psychiatric evaluation was reported to be normal. Approximately one week after entering service, the veteran went on sick-call with complaints of nervousness. It was noted that the examiner discussed the veteran's "particular problems" with boot camp and recorded an impression of anxiety reaction. The veteran again complained of continuing nerve problems in late March 1973. By mid-July 1973, the veteran requested that he be released from active service and asked that he be referred to a psychiatrist. He claimed that everything bothered him and that he needed help. It was noted that he had been referred for a neuropsychiatric consultation. There is no evidence in the service medical records that this consultation took place. The veteran was reported to have unauthorized leave in August and September 1973. His administrative records dated in mid-September 1973 indicate that the veteran was given a general discharge from the military due to his "unfitness." However, a separation examination conducted the day before listed no significant disabilities and his psychiatric evaluation was reported to be normal. The veteran's VA outpatient records from the early 1990's indicated that he had received regular psychiatric therapy. The diagnoses included mild depression, personality disorder, adjustment disorder, and other psychiatric evaluations that determined that the veteran's symptoms did not warrant a clinical diagnosis. He alleged that he had undergone a sexual trauma as a child and had been thrown out of the military for being gay. In a written statement received in September 1997, the veteran claimed that his basic training company commander had labeled him a homosexual and subjected him to public verbal abuse. The veteran alleged that, approximately two weeks after entering the military, a group of his fellow service members physically assaulted him and threatened him with sexual assault. He asserted that he had reported this attack to his company commander the following morning, but his commander accused him of lying and stated that if the attack had happened the veteran had "asked for it." It was claimed by the veteran that he reported to sick-call on the same morning and asked for psychiatric treatment. He also asserted that he was transferred at that time to another company where the commander told him not to seek psychiatric treatment because it would given him a "bad name and a hard time." The veteran alleged that he never kept his appoint with the military psychiatrist based on this advice. He contended that he had been traumatized by the assault during his military service which caused a long history of psychiatric problems characterized by difficulty holding a job, homelessness, substance abuse, depression, and suicide attempts. The veteran was afforded a VA examination in November 1997. He related the above noted history to the examiner. In addition, he reported that he was able to finish boot camp in his second company after this company commander provided him with protection. However, he claimed that he had confided to a military nurse his belief that he was a homosexual which was alleged to have led to his discharge from military service. He also reported a history of sexual abuse as a child. The diagnosis was mild to moderate PTSD, major depression, and substance abuse in remission. His stressors were noted to be traumatic events during childhood and in the military. The examiner opined that: It is apparent that this gentleman did have a trauma that did occur whenever he was a child...It is my opinion that the first stressor was as a child and that the stress that he had while in the military accentuated and reinforced the trauma that he had had as a child and that later developed the [PTSD] after that. Another statement was received from the veteran in May 1998 that include information that had previously been revealed in his prior statement and examination. A statement from the veteran's mother received in May 1998 asserted that the veteran's current psychiatric symptoms had started during his military service. Also received at this time was a letter from the veteran's sister. She claimed that she and the veteran had a close relationship prior to his entry into active service. The sister noted that she had stayed in touch with the veteran during his military service through letters and telephone calls. She wrote: When he was transferred from his first company, I asked him why he was moving to a new company, and he told me he had been attacked and that it was better for him to be moved to a new company. The sister alleged that the veteran's psychiatric problems had first appeared after his return from the military. In July 1999, the veteran was afforded a hearing before the Board. His testimony was similar to his prior claims made in his written statements and on examination. He also submitted copies of the previously received letters from his mother and sister. In addition, he submitted a psychiatric evaluation that he been performed in July 1972, prior to his military service. The report noted that the veteran had sought rehabilitation assistance as a freshman in college. The impression was "a rather effeminate individual" who had a neurotic disorder. It was opined by the examiner that the veteran would over react to stress and tend to demand more of himself in some situations than he could consequently perform. II. Applicable Criteria Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered, or disease contracted, in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). In addition, service connection may be granted for any disease diagnosed after discharge, when all 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); See also Cohen v. Brown, 10 Vet. App. 128 (1997). The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). An allegation that a disorder is service connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability in the form of a medical diagnosis, of incurrence or aggravation of a disease or injury in service in the form of lay or medical evidence, and of a nexus between the in-service injury or disease and the current disability in the form of medical evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). III. Analysis 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 physical assault and attempted sexual assault. The veteran's statements with respect to his in-service stressors 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 his experiences during service. This, too, must 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 his in-service stressors 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 these stressors, 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 PTSD is well grounded. To that extent only, the appeal is allowed. REMAND Since the veteran's claim of entitlement to service connection for PTSD has been found to be well grounded, VA's statutory duty to assist attaches. 38 U.S.C.A. § 5107 (West 1991). As noted above, service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in- service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f) (1999). See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f) (1999). In this case, as there is no evidence that the veteran was engaged in combat with the enemy or that the claimed stressors are related to such combat, there must be corroborative evidence of the claimed in-service stressors. See Zarycki v. Brown, 6 Vet. App. 91 (1993). While the claims file includes diagnoses of PTSD, these diagnoses of PTSD were based upon reported in-service stressors that have not been verified, including an alleged in-service sexual assault. Verification of the veteran's aforementioned reported in-service stressors is necessary. The existence of an event alleged as a "stressor" that results in PTSD, though not the adequacy of the alleged event to cause PTSD, is an adjudicative, not a medical determination. Id. The sufficiency of the stressor is a medical determination and adjudicators may not render a determination on this point in the absence of independent medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). 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). As noted above, there are reports by the veteran of stressors during service. The evidence of record, however, also shows that the veteran has reported numerous other pre- and post- service stressful incidents. The pre-service traumatic incidents include sexual abuse as a child. The post-service stressful incidents include work and financial problems, and problems related to substance abuse. Moreover, in addition to PTSD, there are also numerous other psychiatric diagnoses of record. The post-service diagnoses, assessments, and impressions include PTSD, substance abuse, mild and major depression, adjustment disorder, and personality disorder. 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 (M21-1), Part III, 5.14(c) (February 20, 1996). The Court of Appeals for Veterans Claims (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. YR v. West, 11 Vet. App. 393, 398-99 (1998); Patton v. West, 12 Vet App 272 (1999). Veterans who claim service connection for disabilities due to an in-service personal assault face unique problems documenting their claims. A stressor development letter specifically tailored for personal assault cases should be sent to such veterans. However, the RO has not sent the veteran such a letter and the Board finds that this should be done. See M21-1, Part III, 5.14(b)(3)(a), 5.14(c)(6), (c)(7). 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). The service medical records indicate that the veteran was referred for a psychiatric evaluation. However, such a report is not contained in the claims file and it appears that the complete service medical records have not been obtained. As it appears that there may be additional service medical records, the Board finds that an additional attempt to obtain all service medical records is warranted. The Board finds that the RO should request that the veteran report whether he received private psychiatric or other relevant treatment during service. If he responds in the affirmative, an attempt should be made to obtain all relevant private treatment records dated during the veteran's medical service. See M21-1, Part III, 5.14(c)(5)(a). In addition, the RO should request that the veteran identify all healthcare providers that have given him psychiatric treatment since his release from the military. The RO should then attempt to obtain these records. It has also been noted by the veteran that he has applied for disability benefits from the Social Security Administration (SSA). The Court has ruled on the importance of the VA to obtain copies of all relevant SSA records when adjudicating a claim for disability compensation. See Masor v. Derwinski, 2 Vet. App. 181 (1992). Therefore, the RO should request copies of the medical evidence used in determining the veteran's eligibility for SSA benefits. In order to ensure that the record is fully developed, this case is REMANDED to the RO for the following: 1. The RO should contact the veteran and request that he report all treatment and evaluation that he received for any psychiatric disorder before, during, and after service, including the dates and locations of any such treatment. After obtaining the appropriate authorization, the RO should then attempt to obtain any such records which have not been previously incorporated into the claims file. The RO should also obtain any SSA decision the veteran has received regarding his claim for disability benefits along with all underlying evidence used in arriving at that decision. Any and all responses received from these request must be documented in the veteran's claims file. 2. The RO should make an additional attempt to obtain the veteran's complete service medical records, as well as service administrative file, from all available sources. 3. The RO should afford the veteran the opportunity to submit any additional evidence in support of his claim for service connection for PTSD, to include statements from relatives. He should be asked to provide any additional information possible regarding the stressful events claimed to have caused PTSD and to identify potential alternative sources for supporting evidence regarding the stressors he 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. The veteran is advised that this information is necessary to obtain supportive evidence of the stressful events and that he 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, including military police records, if the veteran has provided sufficiently detailed information to make such request 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 afforded a VA psychiatric examination. The claims file, a separate 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. 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 utilize the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) in arriving at diagnoses 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 examiner should specifically comment on and indicate agreement or disagreement with a November 1997 psychological report that found the veteran's psychiatric problems may have begun in childhood, but that such pre-existing pathology was exacerbated due to his experiences during service. A complete rationale must be given for any opinion expressed and the foundation for all conclusions should be clearly set forth. The report of the psychiatric examination should be associated with the veteran's claims folder. 7. The veteran's claim should then be readjudicated with consideration of all pertinent law, regulations, Court decisions and M21-1, Part III, 5.14(c). If the veteran's claim remains denied, he and his representative should be provided with a Supplemental Statement of the Case, which includes any additional pertinent law and regulations, specifically to include M21-1, Part III, 5.14(c). The applicable response time should be allowed. 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 case should then be returned to the Board, if in order, after compliance with the customary appellate procedures. No action is required of the veteran until he is so informed. The Board intimates no opinion as to the ultimate decision warranted in this case, pending completion of the requested development. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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. N. R. ROBIN Member, Board of Veterans' Appeals