Mst

[carlie]

I can't find the thread now but someone posted earlier, something about

vets can't get SC for sexual trauma.

Well, I know for sure they can and SOME do.

Best to all,

carlie

[Jay Johnson]

Carlie,

Thanks:-) I actually agree that it is harder to get SC for MST as well...I'm having a tough time wording what I actually mean here. It is not, nor was not, my intent to say that MST is easier to SC; rather, I am trying to say that the burden of proof is lower (which doesn't neccassarily make it any easier to SC). Also, my main point is that if the VA changes the level of proof it would detroy what little chance men/women have at getting SC for rape.

I guess I'm trying to say that it takes much more work to SC MST and most vets don't have the ability (due to the PTSD) to go through with a claim for MST, but the burden of proof is different for MST then combat trauma and it NEEDS to remain that way. Is that a bit clearer?

[Wings]

This Court has previously held that the Manual M21-1 provisions in 7.46 [currently 11.37] dealing with PTSD are substantive rules that are "the equivalent of [VA] [r]egulations'." Cohen (Douglas), 10 Vet. App. at 139 (quoting Hayes v. Brown, 6 Vet.App. 66, 67 (1993)); see also Smith (Bernard) v. Brown, 10 Vet.App. 44, 48 (1996); Dixon, 3 Vet.App. at 263; Fugere v. Derwinski, 1 Vet.App. 103, 109 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992). Citing Patton v. West (1999)

11.37 POST-TRAUMATIC STRESS DISORDER (PTSD)

Service connection for PTSD requires:

1) medical evidence establishing a clear diagnosis of the condition,

2) credible supporting evidence that the claimed in-service stressor actually occurred; and

3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor (38 CFR 3.304(f)).

The issue of service connection for PTSD is the sole responsibility of the rating specialist at the local level. Central Office opinion or guidance may be requested on complex cases.

a. Stressors. In making a decision, exercise fair, impartial, and reasonable judgment in determining whether a specific case of PTSD is service connected. Some relevant considerations are:

(1) PTSD does not need to have its onset during combat. For example, vehicular or airplane crashes, large fires, flood, earthquakes, and other disasters would evoke significant distress in most involved persons. The trauma may be experienced alone (rape or assault) or in the company of groups of people (military combat).

(2) A stressor is not to be limited to just one single episode. A group of experiences also may affect an individual, leading to a diagnosis of PTSD. In some circumstances, for example, assignment to a grave registration unit, burn care unit, or liberation of internment camps could have a cumulative effect of powerful, distressing experiences essential to a diagnosis of PTSD.

(3) PTSD can be caused by events which occur before, during or after service. The relationship between stressors during military service and current problems/symptoms will govern the question of service connection. Symptoms must have a clear relationship to the military stressor as described in the medical reports.

(4) PTSD can occur hours, months, or years after a military stressor. Despite this long latent period, service-connected PTSD may be recognizable by a relevant association between the stressor and the current presentation of symptoms. This association between stressor and symptoms must be specifically addressed in the VA examination report and to a practical extent supported by documentation.

(5) Every decision involving the issue of service connection for PTSD alleged to have occurred as a result of combat must include a factual determination as to whether or not the veteran was engaged in combat, including the reasons or bases for that finding. (See Gaines v. West, 11 Vet. App. 113 (1998).)

(1) Conclusive Evidence. Any evidence available from the service department indicating that the veteran served in the area in which the stressful event is alleged to have occurred and any evidence supporting the description of the event are to be made part of the record. Corroborating evidence of a stressor is not restricted to service records, but may be obtained from other sources (see Doran v. Brown, 6 Vet. App. 283 (1994)).

If the claimed stressor is related to combat, in the absence of information to the contrary, receipt of any of the following individual decorations will be considered evidence that the veteran engaged in combat:

Air Force Cross

Air Medal with "V" Device

Army Commendation Medal with "V" Device

Bronze Star Medal with "V" Device

Combat Action Ribbon

Combat Infantryman Badge

Combat Medical Badge

Combat Aircrew Insignia

Distinguished Flying Cross

Distinguished Service Cross

Joint Service Commendation Medal with "V" Device

Medal of Honor

Navy Commendation Medal with "V" Device

Navy Cross

Purple Heart

Silver Star

Other supportive evidence includes, but is not limited to, plane crash, ship sinking, explosion, rape or assault, duty on a burn ward or in graves registration unit. POW status which satisfies the requirements of 38 CFR 3.1(y) will also be considered conclusive evidence of an in-service stressor.

(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.

(a) Alternative Evidence. If the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an in-service stressful incident. Examples of such evidence include, (but are not limited to):

Records from law enforcement authorities

Records from rape crisis centers, hospitals, or physicians

Pregnancy tests or tests for sexually transmitted diseases, and

Statements from family members, roommates, fellow service members or clergy.

(b) Behavior Changes. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor.

Examples of such changes include (but are not limited to):

Visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment

Sudden requests for a change in occupational series or duty assignment without other justification

Increased use or abuse of leave without an apparent reason, such as family obligations or family illness

Changes in performance and performance evaluations

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

Substance abuse such as alcohol or drugs

Increased disregard for military or civilian authority

Obsessive behavior such as overeating or undereating

Unexplained economic or social behavior changes, and

Breakup of a primary relationship.

© Development Requirements. Do not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than service medical records, including evidence of behavior changes, may constitute credible supporting evidence of the stressor. Allow the veteran the opportunity to furnish this type of evidence or indicate its potential sources.

(d) Interpretation of Secondary Evidence. 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 or an opinion by an appropriate medical or mental health professional as to whether it indicates that a personal assault occurred.

(3) Credible Supporting Evidence. A combat veteran's lay testimony alone may establish an in-service stressor for purposes of service connecting PTSD (Cohen v. Brown, 94-661 (U.S. Ct. Vet. App. March 7, 1997)). However, a noncombat veteran's testimony alone does not qualify as "credible supporting evidence" of the occurrence of an inservice stressor as required by 38 CFR 3.304(f). After-the-fact psychiatric analyses which infer a traumatic event are likewise insufficient in this regard (Moreau v. Brown, 9 Vet. App. 389 (1996)).

(1) For instructions regarding development of service records, medical treatment, and evidence of stressor or personal assault, refer to Part III, subparagraphs 5.14b and 5.14c.

(2) Unless medical evidence adequate for rating purposes is already of record, request an immediate examination. When requesting an examination, state in the remarks section of VA Form 21-2507, "Request for Physical Examination," "Claims folder to be made available to examiner upon request."

d. Incomplete Examinations and/or Reconciliation of Diagnosis. If an examination is received with the diagnosis of PTSD which does not contain the above essentials of diagnosis, return the examination as incomplete for rating purposes, note the deficiencies, and request reexamination.

(1) Examples of an unacceptable diagnosis include not only insufficient symptomatology, but failure to identify or to adequately describe the stressor, or failure to consider prior reports demonstrating a mental disorder which could not support a diagnosis of PTSD. Conflicting diagnoses of record must be acknowledged and reconciled.

(2) Exercise caution to assure that situational disturbances containing adjustment reaction of adult life which subside when the situational disturbance no longer exists, or is withdrawn, and the reactions of those without neurosis who have "dropped out" and have become alienated are not built into a diagnosis of PTSD.

e. Link Between In-service Stressor and Diagnosis. Relevant specific information concerning what happened must be described along with as much detailed information as the veteran can provide to the examiner regarding time of the event (year, month, day), geographical location (corps, province, town or other landmark feature such as a river or mountain), and the names of others who may have been involved in the incident. The examining psychiatrist or psychologist should comment on the presence or absence of other traumatic events and their relevance to the current symptoms. Service connection for PTSD will not be established either on the basis of a diagnosis of PTSD unsupported by the type of history and description or where the examination and supporting material fail to indicate a link between current symptoms and an in-service stressful event(s).

(1) If a VA medical examination fails to establish a diagnosis of PTSD, the claim will be immediately denied on that basis. If no determination regarding the existence of a stressor has been made, a discussion of the alleged stressor need not be included in the rating decision.

(2) If the claimant has failed to provide a minimal description of the stressor (i.e., no indication of the time or place of a stressful event), the claim may be denied on that basis. The rating should specify the previous request for information.

(3) If a VA examination or other medical evidence establishes a valid diagnosis of PTSD, and development is complete in every respect but for confirmation of the in-service stressor, request additional evidence from either the Center for Unit Records Research (CURR) or Marine Corps. (See Part III, paragraph 5.14.)

(4) Do not send a case to the CURR or Marine Corps unless there is a confirmed diagnosis of PTSD adequate to establish entitlement to service connection. Correspondingly, always send an inquiry in instances in which the only obstacle to service connection is confirmation of an alleged stressor. A denial solely because of an unconfirmed stressor is improper unless it has first been reviewed by the CURR or Marine Corps.

(5) If the CURR or the Marine Corps requests a more specific description of the stressor in question, immediately request the veteran to provide the necessary information. If the veteran provides a reasonably responsive reply, forward it to the requesting agency. Failure by the veteran to respond substantively to the request for information will be grounds to deny the claim based on unconfirmed stressor. (See Part III, paragraph 5.14.)

Disability Examination Worksheets

Initial Evaluation for Post-Traumatic Stress Disorder (PTSD)

http://www.vba.va.gov/bln/21/Benefits/exams/disexm43.htm

[Wings]

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 97-828

Dorrance H. Patton, Appellant,

v.

Togo D. West, Jr.,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans' Appeals

(Decided March 30, 1999 )

Frederick S. "Rick" Spencer was on the brief for the appellant.

John H. Thompson, Acting General Counsel; Ron Garvin, Assistant General Counsel; Carolyn F. Washington, Deputy Assistant General Counsel; and Gregory W. Fortsch were on the pleadings for the appellee.

Before FARLEY, HOLDAWAY, and STEINBERG, Judges.

STEINBERG, Judge, filed the opinion of the Court. HOLDAWAY, Judge, filed a dissenting opinion.

STEINBERG, Judge: The appellant, veteran Dorrance H. Patton, appeals through counsel a March 20, 1997, decision of the Board of Veterans' Appeals (Board or BVA) denying Department of Veterans Affairs (VA) service connection for post-traumatic stress disorder (PTSD). Record (R.) at 9.

The appellant has filed a brief (the Court notes puzzling references in the brief to arthritis and knee and leg problems (Brief (Br.) at 23-24), whereas the only issue addressed by the Board was PTSD). The Secretary

has filed a motion for single-judge affirmance and to strike appellant's statement referring to an exhibit not part of the record on appeal (ROA). This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C . 7252(a) and 7266(a). For the reasons that follow, the Court will deny the Secretary's motion for single-judge affirmance, grant the Secretary's motion to strike, and vacate the Board decision and remand a matter.

I. Facts and Procedural History

The appellant served in the U.S. Army from March to August 1956 and from October 1959 until February 1960. R. at 59-60. His service medical records (SMRs) indicated normal psychiatric clinical evaluations at the time of his first entry into service, first discharge, and second entrance physical. R. at 14-15, 17-18, 37-38.

On the evening of December 9, 1959, the veteran was admitted to the emergency room of an Army hospital, where he was treated for an acute anxiety reaction. R. at 27-28, 33. A detailed description of his treatment contained notations that he was afraid someone would "jump him" and that "inferentially, his profound feelings of shame, as well as other indirect derivatives suggest to me that there may be underlying homosexual panic . . . ." R. at 26-27. The SMRs also indicated that he complained of headaches, anorexia, and sleeplessness, and that he attributed "most of his problems" to an incident when he had been hit in the head with a glass bottle while on leave a few weeks before. R. at 26-28.

According to those records, other soldiers in the barracks had reported that the veteran had "some sort of attack" the night he was first admitted to the Army hospital. Ibid. Although SMRs dated December 10, 1959, report that his anxiety appeared to have worsened since he had arrived at Fort Bragg ( R. at 26), the ROA contains no notations of anxiety prior to December 9, 1959. The veteran's service personnel records contain no indication of any in-service assault incident. R. at 175-92, 194-206.

On January 21, 1960, "despite a limited work assignment," the veteran "presented himself . . . in a tearful disheveled state" at the Army hospital. R. at 51. He was diagnosed as having "[e]motional instability reaction, chronic, moderate; manifested by diffuse anxiety, poor performance under stress", and "administrative separation from the service [was] recommended". R. at 51. The veteran was subsequently given an honorable discharge from the Army. R. at 59.

During 1978 and 1979, the veteran was hospitalized several times in a VA medical facility, was treated for anxiety and depressive neurosis, and received medication from VA and psychotherapy from a private clinic. R. at 62, 64, 68, 101-02, 105; see also R. at 65-67, 69-71, 98- 100, 103. In August 1978, he reported a history of alcoholism (R. at 68), and in March 1979, he "admit[ted] to heavy use of alcohol as a means of coping with his anxiety" and was diagnosed by a VA psychiatrist as having a paranoid personality (R. at 101). In May 1979, a VA physician diagnosed the veteran as having a "habitual excessive drinking" disorder and stated: " On previous admission patient had been called paranoid type personality though at this time I feel that this is probably this patient's basic underlying personality type which was brought out by his decompensation due to many years of alcohol abuse." R. at 102. The veteran submitted letters from two acquaintances, each providing general information about his nervous condition and requesting any assistance that VA could provide for the veteran (R. at 73, 76) and one mentioning his drinking problem (R at 73). The veteran also submitted an August 1979 letter from his wife detailing his changed behavior since service, including his "not getting along with people", his "hid[ing] behind his drinking", his anger and depression, and his "being ashamed of the way he was"; and she specifically reported that around the end of 1961 the veteran's mother had written to her that "she was afraid he might kill himself" and that " something had happened to him in the service". R. at 79-80. The veteran also submitted a July 1979 letter from a private physician stating that the veteran was "extremely agitated, depressed, loses control of [his] temper, and [was] potentially dangerous to both himself and others", and had been so for the prior 12 months. R. at 82. The physician also stated that the veteran had not responded to medication and other treatment and that he might "lose control and kill someone". Ibid.

In September 1979, after a VA regional office (RO) decision denying service connection for a nervous condition and a Statement of the Case were apparently issued (see R. at 84), the veteran filed a VA Form 1-9, Substantive Appeal to the BVA (R. at 95). At an October 1979 hearing at the RO regarding the nervous-condition claim, the veteran testified under oath that he had been hospitalized after an altercation with a noncommissioned officer; that he did not "know what in the hell happened [;] . . . t just all went black"; that he had then received a medical discharge of which he was ashamed; that since he left the service he had " done a lot of heavy drinking . . . to cover this up"; that his anxiety had gotten worse since he stopped drinking a few years ago; and that until recently he had not sought psychiatric assistance because he did not want anyone to know about his problem. R. at 85-86, 86, 87-88, 88, 91.

He subsequently submitted both VA and private medical records from 1978 through 1981 (R. at 107-09, 112-52), including a January 1981 private psychiatric evaluation that noted that the veteran had "a paranoid personality with decompensation into a psychotic state manifested by homicidal ideation, agitation and depression" (R. at 108). No BVA decision apparently was issued in connection with the 1979 RO denial. The ROA does not reflect further contact by the veteran with VA until 1993.

During a November 1993 VA medical examination, the veteran stated, apparently for the first time to any medical professional, that while he was at Fort Bragg he had been raped by three men and that he did not report it because of "fear and shame". R. at 158. He disclosed that after a second hospitalization (apparently in January 1960, see R. at 51) he had told a sergeant about the rape and that the sergeant had instructed him not to tell anyone. At that time, he was diagnosed, for the first time, as having "PTSD, non-combat, chronic". Ibid. In December 1993, the veteran sought to have his nervous-condition claim "re-opened to include PTSD". R. at 157. In January 1994, a VA medical examiner diagnosed PTSD, clearly relating the PTSD to the alleged in-service rape trauma. R. at 167-69. In December 1994, the RO denied service connection for PTSD, finding that the veteran had not provided the required corroborating evidence for an in-service noncombat stressor. R. at 209. The veteran timely appealed to the Board. R. at 212, 225. In April 1995, he testified under oath before the RO that he had been sexually assaulted but had been told (presumably by a sergeant, see R. at 158) that he would receive a dishonorable discharge and would be sent to prison if he reported it. R. at 236-37. In the 1997 BVA decision here on appeal, the Board denied the PTSD claim because it was "based on noncombat-related

unverified stressors", and because corroboration of an in-service stressor was an essential element of his PTSD claim. R. at 9.

II. Analysis

A. Motion to Strike

The appellant contends that, in the absence of evidence of a combat-related stressor, he must "furnish the specific details of the in-service incident" and he states that he has "attempted to submit an affidavit which confirms by a third party the event immediately after this veteran left the service", citing to an "Exhibit 'A' attached hereto and made a part hereof by reference". Br. at 19-20. The Secretary has responded with a motion to strike references to that exhibit. Motion at 1-2. The Court notes that there is no such exhibit attached to the appellant's brief. In addition, this Court is precluded by statute from including in the ROA any material that was not contained in the "record of proceedings before the Secretary and the Board". 38 U.S.C. 7252(b); see also Wilhoite v. West, 11 Vet.App. 251, 252 (1998); Bell v. Derwinski, 2 Vet.App. 611, 612- 13 (1992) (per curiam order); Rogozinski v. Derwinski, 1 Vet.App. 19 (1990 ) (review in Court shall be on record of proceedings before Secretary and Board). Accordingly, we will not consider the appellant's purported attempt to submit an affidavit as an exhibit to his brief. See Gabrielson v. Brown, 7 Vet.App. 36, 41-42 (1994). The appellant is, of course, free to submit additional evidence, including the asserted statement referred to above, to the Board in connection with the remand that we will order in this opinion. See id. at 42.

B. PTSD Claim

1. Well-Groundedness. [the doctrine of well grounded claim has been recinded in lieu of the VCAA 1999. Consequently, VA is mandated with a "duty to assist" in the development of veteran's claims. Read the Veterans Claims Assitence ACt of 1999].

Establishing service connection for PTSD requires (1) a current, clear medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. 3.304(f); Anglin v. West, 11 Vet.App. 361, 367 (1998); Cohen (Douglas), 10 Vet.App. at 138. The evidence required to support the occurrence of an in-service stressor varies " depending on whether or not the veteran was 'engaged in combat with the enemy' . . . . Where . . . VA determines that the veteran did not engage in combat with the enemy . . . the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor." Zarycki, 6 Vet.App. at 98 (citations omitted). The requisite additional evidence may be obtained from sources other than the veteran's SMRs. See Moreau v. Brown, 9 Vet.App. 389, 395 (1996), aff'd, 124 F.3d 228 (Fed. Cir. 1997) (table).

The Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court. See 38 U. S.C. 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasiveor unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson, 7 Vet.App. at 39-40.

In the instant case, the Court, upon de novo review, holds that the veteran has submitted a well-grounded claim for service connection for PTSD. He has provided medical evidence of a current diagnosis of PTSD (R. at 159, 160, 169), his lay evidence of a sexual assault as the noncombat, in-service stressor (R. at 235, 239), and medical-nexus evidence generally linking his PTSD to his service (R. at 169). The Board thus properly found the claim well grounded and proceeded with a merits adjudication of the PTSD claim. See Cohen (Douglas), 10 Vet.App. at 136- 37.

2. Applicability of Manual 21-1 Provisions. In its 1997 decision, the Board did not discuss the special evidentiary procedures for PTSD claims based on personal assault that were established in February 1996 in VA Adjudication Procedure Manual M21-1 (Manual M21-1), Part III, 5.14c ( Feb. 20, 1996), and that are a substantially expanded version of former Manual M21-1, Part III, 7.46c(2) (Oct. 11, 1995) (evidence of behavior changes that may indicate occurrence of personal assault as in-service stressor in PTSD context). See YR v. West, 11 Vet.App. 393, 398-99 (1998); Anglin, 11 Vet.App. at 368. "This Court has previously held that the Manual M21-1 provisions in 7.46 dealing with PTSD are substantive rules

that are "the equivalent of [VA] [r]egulations'." Cohen (Douglas), 10 Vet. App. at 139 (quoting Hayes v. Brown, 6 Vet.App. 66, 67 (1993)); see also Smith (Bernard) v. Brown, 10 Vet.App. 44, 48 (1996); Dixon, 3 Vet.App. at 263; Fugere v. Derwinski, 1 Vet.App. 103, 109 (1990), aff'd, 972 F.2d 331 ( Fed. Cir. 1992). Moreover, this Court has recently required that VA follow the new provisions in 5.14c. YR, supra. The new provisions at 5.14c were not in effect at the time of the RO decision but were in effect at the time of the 1997 BVA decision.

a. Effect of Routen v. West: Before turning to consideration of 5. 14c, we must consider another threshold matter. This Court held in Karnas v. Derwinski that "where the law or regulation changes after a claim has been filed or reopened but not before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant should and we so hold will apply unless Congress provided otherwise or permitted the [secretary] to do otherwise and the Secretary did so." Karnas, 1 Vet.App. 308, 312-13 (1991). The change in Manual M21- 1 provisions applicable to PTSD claims would normally require this Court to remand the claim to the Board for readjudication because at the time of the 1994 RO decision neither 7.46c(2) nor 5.14c were in effect. Id. at 311. However, the U.S. Court of Appeals for the Federal Circuit ( Federal Circuit) has held that a regulatory change in an evidentiary burden constitutes neither new and material evidence to reopen a claim nor an intervening change in law to create a new basis for entitlement. Routen v. West, 142 F.3d 1434, 1440, 1442 (Fed. Cir. 1998), aff'g sub nom. Routen v. Brown, 10 Vet.App. 183, 187 (1997), cert. denied, 119 S. Ct. 404 ( 1998). In Anglin, supra, therefore, this Court held that the new Manual M21-1, Part III, 5.14c, regulatory provisions would not provide a basis to reopen or remand a previously and finally disallowed PTSD claim.

Accordingly, if the PTSD claim before us in the instant case is part of a claim to reopen, Routen would prohibit a remand unless there were new and material evidence to reopen the nervous- condition claim that had been disallowed in September 1979. See Routen, supra. Although in 1993 the appellant framed his PTSD claim as one to reopen (R. at 157), the December 1994 RO decision did not discuss reopening any prior disallowed claim (see R. at 209). It appears that the veteran's nervous-condition claim was pending before the Board at that time because, although he had filed a Substantive Appeal to the BVA (R. at 95), the ROA contains no subsequent BVA decision on that issue. In addition, in 1996, while the veteran's claim was pending before the Board, the Federal Circuit held that "a claim based on the diagnosis of a new mental disorder, taken alone or in combination with a prior diagnosis of a related mental disorder, states a new claim, . . . when the new disorder had not been diagnosed and considered at the time of the prior [N]otice of [D]isagreement." Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996), vacating Ephraim v. Brown, 5 Vet.App. 549 (1993); see also Ephraim, 5 Vet.App. at 552-53 (Steinberg, J., dissenting). Here, the veteran had not been diagnosed as having PTSD at the time of the apparent 1979 RO denial of service connection for a nervous condition. See R. at 84, 95. I n the 1997 BVA decision, the Board thus correctly reviewed the appellant's PTSD claim as an original claim, and not a claim to reopen. R. at 3. Hence, because the current appeal does not involve a claim to reopen as to the nervous-condition claim, the Routen holding has no application to this case. Cf. Anglin, supra. We thus proceed to consider the applicability of Manual M21-1, Part III, 5. 14c.

b. Impact of the Manual 21-1 provision: The general Manual M21-1 provisions on PTSD claims in 5.14 require: "In cases where available records do not provide objective or supportive evidence of the alleged in- service stressor, it is necessary to develop for this evidence." Manual M21-1, Part III, 5.14b(3). As to personal-assault PTSD claims, more particularized requirements are established. Specifically, Manual M21-1, Part III, 5.14c, states in pertinent part:

(1) Veterans claiming service connection for disability due to an in-service personal assault face unique problems documenting their claims. 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. Although most often these incidents involve female veterans, male veterans may also be involved. Care must be taken to tailor development for a male or female veteran. These incidents are often violent and may lead to the development of PTSD secondary to personal assault. It is possible for someone to develop symptoms of PTSD as a result of this type of stressful experience. . . .

(2) Because assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. Therefore, alternative evidence must be sought.

(3) To service connect PTSD, there must be credible evidence to support the veteran's assertion that the stressful event occurred. This does not mean that the evidence actually proves that the incident occurred, but rather that the preponderance of evidence supports the conclusion that it occurred.

. . . .

(5) The service record may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. Therefore, development to alternative sources for information is critical. Alternative sources that may provide credible evidence of the in-service stressor include:

(a) Medical records from private (civilian) physicians or caregivers who may have treated the veteran either immediately following the incident or sometime later;

(b) Civilian police reports;

© Reports from crisis intervention centers such as rape crisis centers or centers for domestic abuse;

(d) Testimonial statements from confidants such as family members, roommates, fellow service members, or clergy;

(e) Copies of personal diaries or journals.

(6) Identifying possible sources of alternative evidence will require that you ask the veteran for information concerning the incident. This should be done as compassionately as possible in order to avoid further traumatization. The PTSD stressor development letter used by regional offices to solicit details concerning the in- service stressful incident may be inappropriate for this type of PTSD claim. Therefore, if the stressful incident is a personal assault, use Exhibit A.3 or a letter developed locally for this type of claim.

(7) The suggested attachment to the development letter shown in Exhibit A.1 is inappropriate for PTSD claims based on personal assault and should not be used for that purpose. Instead use Exhibit A.4 to this letter or an attachment developed locally.

(8) Rating board personnel must carefully evaluate all the available evidence. 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 are (but not limited to):

(a) Visits to medical or counseling clinic or dispensary without a specific diagnosis or specific ailment;

(b) Sudden requests that the veteran's military occupational series or duty assignment be changed without other justification;

. . . .

(e) Lay statements describing episodes of depression, panic attacks or anxiety but no identifiable reasons for the episodes;

. . . .

(h) Evidence of substance abuse such as alcohol or drugs;

. . . .

(9) Rating boards may rely on the preponderance of evidence to support their conclusions even if the record does not contain direct contemporary evidence. 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.

Manual M21-1, Part III, 5.14c(1)-(3), (5)-(7), (8)(a), (8)(b), (8)(e), ( 8)(h), (8)(n), (9) (emphasis added).

Of particular pertinence to this case are the provisions of subparagraphs (8) and (9), above, stating that "behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor" (Manual M21-1, Part III, 5.14c(8)); and that "secondary evidence may need interpretation by a clinician, especially if it involves behavior changes" and that "[e]vidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician" (Manual M21-1, Part III, 5. 14c(9)). When read together, subparagraphs (8) and (9) show that in personal-assault cases the Secretary has undertaken a special obligation to assist a claimant, here one who has submitted a well-grounded claim, in producing corroborating evidence of an in-service stressor.

The Court further notes that it has previously stated that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'", Moreau, 9 Vet.App. at 396, and that "[ a]n opinion by a mental health professional based on a postservice examination of the veteran cannot be used to establish the occurrence of the stressor," Cohen (Douglas), 10 Vet.App. at 145 (citing Moreau, supra). See also YR, 11 Vet.App. at 397-98 (quoting these statements in Cohen ( Douglas), and Moreau, both supra). These quoted categorical statements were made in the context of discussing PTSD diagnoses other than those arising from personal assault. As to such personal-assault cases, as we have seen, VA has provided for special evidentiary-development procedures, including interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis. Manual M21-1, Part III , 5.14c(8), (9). To that extent, the above categorical statements in Cohen (Douglas) and Moreau, and other cases where they may have been echoed, are not operative. Indeed, in YR, where the veteran had been placed under hypnosis by a licensed social worker who concluded thereafter that there was no doubt that the

veteran had been raped traumatically, the Court, after having quoted the above Cohen statement and cited Moreau, nonetheless, remanded the claim because, among other deficiencies in the adjudication, the Board had " entirely failed to consider the hypnosis evidence, let alone discuss its weight and credibility" or provide an adequate statement of "reasons [or] bases . . . for its acceptance or rejection". YR, 11 Vet.App. at 397-99.

Moreover, the Court notes that in two places Manual M21-1, Part III, 5.14c, appears improperly to require that the existence of an in-service stressor be shown by "the preponderance of the evidence". Manual M21-1, Part III, 5.14c(3), (9). Any such requirement would be inconsistent with section 5107(b) of title 38, U.S. Code, which requires that when "there is an approximate balance or positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant." 38 U.S.C. 5107(b). Section 5107(b) codifies the so-called equipoise doctrine under which once a claimant submits a well-grounded claim, that claim must be granted unless the evidence preponderates against the claim. Alemany v. Brown, 9 Vet.App. 518, 519-20 ( 1996); Gilbert v. Derwinski, 1 Vet.App. 49, 55-56 (1990); see also YR, 11 Vet.App. at 399 ("n a system where equipoise is the standard of proof, evidence of this nature cannot be ignored"). On remand, in adjudicating the existence of an in-service stressor and any other material issue, the equipoise standard of proof, of course, not the preponderance standard, must be applied.

3. Review of Merits Adjudication. As to the merits adjudication of this case, the appellant asserts the sexual assault as the noncombat- related stressor. Br. at 6; see also R. at 157-59, 167-73, 225-26, 231-44. In its 1997 decision, the Board recognized that "credible evidence from any source" can be used to corroborate a claimed in-service stressor ( citing Cohen (Douglas), 10 Vet.App. at 142, and Moreau, 9 Vet.App. at 394- 95) but, after considering only the veteran's and his counsel's statements, concluded that "the absence of any corroborating evidence [was] sufficient to render his stressor invalid". R. at 7-8. Having concluded that credible supporting evidence of a stressor had not been provided, the Board denied service connection without addressing the veteran's medical evidence of a current diagnosis of PTSD or of a nexus between the diagnosis and the alleged stressor. R. at 8-9.

The Secretary concedes, however, that the veteran "has both a current, clear medical diagnosis of PTSD (R. at 159-61, 169) and medical evidence of a causal nexus between his current symptomatology and the specific claimed in-service stressor (R. at 169)" and that "the only issue that remains is whether or not [the appellant] has provided credible supporting evidence that the claimed in-service stressor actually occurred." Motion at 14. The Secretary, citing YR, 11 Vet.App. at 398- 99, and Manual M21-1, Part III, 5.14c(5), acknowledges th at a veteran's records "may be devoid of evidence pertaining to a sexual assault because many victims of such an assault do not file official reports . . . and that . . . all of the other evidence in the record which pertains to the assault should be carefully analyzed and discussed"; and that the veteran has testified that he "tried to report this assault in service but was discouraged from doing so". Motion at 16. The Secretary then argues, as the Board found (R. at 8), that there was "no evidence" to corroborate the veteran's own statements ( Motion at 16). We disagree.

In her August 1979 letter, the appellant's wife stated that the veteran's mother had written to her that "something had happened to him in the service". R. at 79-80. This seems to be the sort of testimony from " confidants such as family members, roommates, fellow service members, or clergy" that was contemplated by VA in 5.14c(5)(d) of Manual M21-1, Part III, as well as by the letter formats expressly developed for use in personal-assault claims, Manual M21-1, Part III, 5.14, Exhibits A.3, A.4 . In addition, testimonial statements from other persons involved, such as the sergeant who allegedly talked the veteran out of reporting the assault and the soldiers in the barracks who apparently had seen the veteran have "some sort of an attack", might provide pertinent corroboration. Ibid. Moreover, the marked behavior changes documented from December 9, 1959 -- such as the appellant's anxiety attacks in December 1959 and January 1960 without obvious causes (R. at 26-28, 33, 51 ), his continued in-service anxiety even with a reduced duty assignment (R. at 51), his history of psychiatric treatment with a wide variety of diagnoses (R. at 51, 62-71, 98-105, 108), and his history of alcohol abuse ( R. at 68, 73, 79-80, 87-88, 102) -- but not documented before that date, should be examined and clinically interpreted to determine whether they constitute evidence of "[v]isits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment", "udden requests that . . . duty assignments be changed", "[l]ay statements describing episodes of depression, panic attacks or anxiety", and "[e] vidence of substance abuse such as alcohol or drugs" that "may indicate the occurrence of an in[-]service stressor." Manual M21-1, Part III, 5.14c(8), (8)(a), (8)(b), (8)(e), (8)( h), (9). Also, the veteran's description of an unidentified sergeant's comments to him about being imprisoned if he reported an assault (R. at 236-37) lends some support to his having provided another explanation for his severe anxiety attacks in service. The Board failed to address all of the above evidence and provide an adequate statement of reasons or bases for its acceptance or rejection. See YR, 11 Vet.App. at 398-99; Allday and Gabrielson, both supra.

In addition, the Court notes the efforts of the RO in its May 16, 1994, letter to attempt to alert the veteran to the need to gather stressor evidence. R. at 164. Such a letter was perfectly appropriate at the time it was sent. However, since then, with the adoption of 5.14c, VA has decided that a special PTSD personal-assault letter should be sent. See Manual M21-1, Part III, 5.14c(6), (7); see also Manual M21-1, Part III, 5.14, Exhibits A.3, A.4. In the questionnaire to be enclosed with such letter, the veteran is advised to seek statements from "a roommate, family member, chaplain, clergy or fellow service person" in whom he may have confided and to provide any statements that might aid in the adjudication of his claim. Manual M21-1, Part III, 5.14, Exhibit A.4(4 ). The veteran is also asked to provide any evidence of these same factors showing behavior changes listed in 5.14c(8). The BVA cannot ignore provisions of the Manual M21-1 relating to PTSD that are favorable to a veteran when adjudicating that veteran's claim. See Cohen (Douglas), 10 Vet.App. at 138-39; Hayes and Fugere, both supra. As we have seen, because of the unique problems of documenting personal-assault claims, the RO is responsible for assisting the claimant in gathering, from sources in addition to in-service records, evidence corroborating an in-service stressor, by sending a special letter and questionnaire, by carefully evaluating that evidence including behavior changes, and by furnishing a clinical evaluation of behavior evidence. Manual M21-1, Part III, 5.14c; see also 38 C.F.R. 3.103©(2); Dixon and Douglas, both supra. By failing to remand the matter so that the RO might assist the veteran in seeking and interpreting such alternative evidence, the BVA failed to comply with 5.14c and the duty to assist pursuant to section 5107(a). See also 38 C.F.R. 19.9(a) (1998) ("f further evidence . . . is essential for proper appellate decision, [the BVA] shall remand the case to the [RO]").

Therefore, the Court will remand to the Board for it to attempt to verify whether the asserted sexual-assault stressor occurred. On remand, all evidentiary development called for by the Manual M21-1 should thus be undertaken and, in view of the circumstances here, this should include interpretation by a clinician of behavior changes and evidence pertaining thereto. See 38 U.S.C. 5107(a); 38 C.F.R. 3.159; Cohen (Douglas), 10 Vet.App. at 148-49 (noting VA duty under section 5107(a) and Manual M21-1 to assist veteran in development of evidence to verify noncombat stressor as to well-grounded PTSD claim); Manual M21-1, Part III, 1.05a ("on request by a beneficiary or authorized representative, [VA should] make reasonable efforts to assist claimants in securing public documents and other evidence"), 5.14c. If the stressor is verified, the Board must then proceed to adjudicate fully the matter of whether the veteran suffers from service-connected PTSD. See Cohen (Douglas), 10 Vet.App. at 150 (remanding to Board question whether asserted stressors contributed to veteran's current symptoms of PTSD).

4. Response to Dissent. [omitted]

III. Conclusion

Upon consideration of the foregoing analysis, the ROA, and the parties' pleadings, the Court vacates the BVA decision and remands the PTSD issue for further expeditious development, see 38 U.S.C. 5107(a); 38 C.F.R. 3.103©(2), 3.159, 3.304(f), 19.9(a); Manual M21-1, Part III , 5.14c, and expeditious issuance of a readjudicated decision supported by an adequate statement of reasons or bases, see 38 U.S.C. 7104(a), (d); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) -- all consistent with this opinion and in accordance with section 302 of the Veterans' Benefits Improvements Act, Pub. L. No. 103-446, 302, 108 Stat. 4645, 4658 (1994) ( found at 38 U.S.C. 5101 note) (requiring Secretary to provide for " expeditious treatment" for claims remanded by BVA or the Court). See Allday, 7 Vet.App. at 533-34. The Secretary's motion to strike is granted and his motion to affirm is denied. " On remand, the appellant will be free to submit additional evidence and argument" on the remanded claim. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). The Court notes that a remand by this Court and by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet.App. 268, 271 (1998). A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court only upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the new Board final decision is mailed to the appellant.

VACATED AND REMANDED.

HOLDAWAY, Judge, dissenting [omitted]

[Jay Johnson]

Very good links wings, thanks:-) Confirms my belief that the burden of proof is different between rape cases and comabt cases... it also helps ease my wories a bit about the PTSD reviews, as there are firm laws regarding stressors for MST and the VA can't just say there's no hard proof and throw MST cases out.

[Wings]

The Patton case was a landmark case. Our resident attorney, Alex H. (where is he?!) often cites this case as a primary example of how to develop alternative evidence for sexual asault. You will note the claim was decided in 1999.

[Alex]

Guys should keep in mind that the lower standard of proof for rape cases applies to all cases of personal assault. So if they gave you a "blanket party" by throwing a blanket ovr your head and beatingtht stuffings out of you, or threw you in the shower and soaped you up with a brillo pad (both of which happened in my BCT company). and you were traumatized bythe experience. then you can be servie connececd essentially if the psychiatrist thinks you are credible. I have won a number of cases on this basis.

Alex