[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 97-828 [ACTIVITY]{.underline}: RATING

[NAME]{.underline}: Patton v. West

[ISSUE(S)]{.underline}: Post traumatic stress disorder (PTSD) claims
based on personal assault

[ACTION BY COURT]{.underline}: Remand [DECISION DATE]{.underline}:
3-30-99

[FACTS]{.underline}: *(This assessment does not cover Judge Holdaway's
dissenting opinion. This assessment covers generally the Court's
discussion relating to PTSD claims based upon personal assault. All are
urged to read the full text of the opinion.)* The veteran served on
active duty from March to August 1956 and from October 1959 to February
1960. The veteran was hospitalized on December 9, 1959, for an acute
anxiety reaction. A notation showed he was afraid someone would "jump
him" and that "inferentially, his profound feeling of shame, as well as
other indirect derivatives suggest to me that there may be underlying
homosexual panic . . .." The SMRs also indicated 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. SMRs showed 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. Service
personnel records contained no indication of any in-service assault
incident. On January 21, 1960, "despite a limited work assignment," the
veteran "presented himself in a tearful, disheveled state" at the Army
hospital. 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".

There are VA and private medical records showing treatment from 1978
through 1981. In August 1979, the veteran submitted a 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 happened to him in the service."

During a November 1993 VA medical examination, the veteran stated,
apparently for the first time to any medical professional, that while at
Fort Bragg he had been raped by three men and that he did not report it
because of "fear and shame." He disclosed that after a second
hospitalization, he had told a sergeant about the rape and that the
sergeant had instructed him not to tell anyone. He was diagnosed for the
first time as having "PTSD, non-combat, chronic". In January 1994, a VA
medical examiner diagnosed PTSD, clearly relating the PTSD to the
alleged in-service rape trauma. The BVA denied the PTSD claim because it
was "based on non-combat-related unverified stressors", and because
corroboration of an in-service stressor was an essential element of the
PTSD claim.

[ANALYSIS]{.underline}: The Court found the veteran has provided a well
grounded claim for service connection for PTSD. He provided medical
evidence of a current diagnosis of PTSD, lay evidence of a sexual
assault as the noncombat, in-service stressor, and medical nexus
evidence generally linking his PTSD to his service.

The Court stated that the BVA 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, par. 5.14c (February 20, 1996). The Court
noted that paragraphs (8) and (9) of the above-cited Manual provisions,
when read together, show that in personal-assault cases, VA 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 noted that it had previously stated that "\[a\]n opinion by a
mental health professional based on a post-service examination of the
veteran cannot be used to establish the occurrence of the stressor."
*Cohen (Douglas) v. Brown*, 10 Vet. App. 128, 145 (1997). The Court
stated that for personal-assault cases 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, par. 5.14c(8), (9). To that extent,
according to the Court, the above categorical statements in *Cohen
(Douglas),* and other cases where they may have been echoed, are not
operative.

The Court noted that the Manual M21-1, in par. 5.14c(3) and (9) of Part
III, 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, par. 5.14c(3), (9). This is inconsistent with 38 USC § 5107(b)
which requires that if the evidence is in equipoise, the benefit of the
doubt must be given to the claimant. The Court stated that 38 USC §
5107(b) requires that on remand, in adjudicating the existence of an
in-service stressor and any other material issue, the equipoise doctrine
should be applied and not the preponderance standard.

The Court then found there was evidence to corroborate the veteran's own
statements regarding the assault. The Court noted that statement from
the veteran's wife that his mother had written to her that "something
had happened to him in the service" seemed to be the sort of testimony
contemplated by VA in par 5.14c(5)(d) of Manual M21-1, Part III, as well
as by the letter formats developed for use in personal assault claims
shown in par 5.14, Exhibits A.3, A.4. In addition, the Court stated that
testimonial statements from other persons involved, such as the sergeant
and the other soldiers referenced above, might provide pertinent
corroboration. The Court also noted, the veteran's marked behavior
changes documented from December 9, 1959, his continued in-service
anxiety even with a reduced duty assignment, history of alcohol abuse,
and his history of psychiatric treatment should be examined and
clinically interpreted to determine whether they constitute evidence
which may indicate the occurrence of an in-service stressor, in
accordance with par. 5.14a(8), (8)(a), (b), (e), (h), and (9). The Court
also stated that the veteran's description of an unidentified sergeant's
comments about being imprisoned if he reported the assault lends some
support to his having provided another explanation for his anxiety
attacks in service. The Court remanded for the Board to attempt to
verify whether the asserted assault stressor occurred.

In sum, the Court stated that, 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. See Manual M21-1, Part III, par. 5.14c and Exhibits
A.3, A.4. The Court ordered that on remand, all evidentiary development
called for by the manual is to be undertaken to include interpretation
by a clinician of behavior changes and evidence pertaining thereto.

In addition to the above analysis, VA must also look at M21-1, Part VI,
par 11.38 (formerly par 7.46). In this case, the Court notes that it had
held previously that the predecessor M21-1 provisions in par 7.46 to be
the equivalent of binding VA regulations. In Hayes v. Brown, 5 Vet.App.
66 (1993), the Court found that paragraph 7.46 was a rule. In October
1995, the following words were added to then Part VI, paragraph 7.46:
"evidence of behavior changes that may indicate occurrence of personal
assault as in-service stressor in PTSD context." The Court seems to be
making an implicit finding that the cited text is also a rule. Finally,
it is noted that the language in M21-1, Part III, par. 5.14c that the
Court has deemed to be regulatory is similar (and in some instances)
identical to the language in M21-1, Part VI, par. 11.38.

[IMPACT ON DECISIONMAKERS]{.underline}: The manual provisions must be
applied by all decision makers to PTSD claims based upon personal
assault. This case may be a good training tool for those types of cases.

[RECOMMENDED VBA ACTION(S)]{.underline}:

\(1\) The manual provisions in Manual M21-1, Part III, par. 5.14c(3),
(9) which refer to a preponderance of the evidence should be deleted.

\(2\) Manual provisions in M21-1, Part III, par. 5.14c and Part VI, par.
11.38, to the extent that they contain rules, should be promulgated as
regulations, at which time, the manual provisions should be deleted.

\(3\) Consideration should be given to changing C&P policy which
currently continues to maintain in the manual those citations that have
been formally made regulations. It would seem to be a prudent step to
remove those provisions upon promulgation of the regulations.

\(4\) Copies of this decision and assessment should be provided to the
stations training coordinators as it would be a good training tool for
cases involving alleged physical assaults.

[ACTION BY DIRECTOR, C&P SERVICE]{.underline}:

[Approved]{.underline}?

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[8/25/99]{.underline}

Yes No Robert J. Epley Date