**Judicial Review Conference Call Index**

**July 1, 1999**

**Page Topic**

**1 Opening Remarks**

> **Statements of the Case**

**2 PTSD Claims Based on Personal-Assault**

> ***Patton v. West*, 12 Vet.App.272 (1999)**

**3 Copies of Notice Letters in the Record**

***Donovan v. West*, 11 Vet.App. 481 (1998)**

**4 Secondary service connection for disability due to service connected
PTSD**

***Stephen B. Jones* v. West, 12 Vet.App. 383 (1999)**

**Presumption o Soundness**

***Vanerson v. West*, 12 Vet.App. 254 (1999)**

**5 Presumptive service connection for arthritis for former POWs**

***Greyzck v. West*, 12 Vet.App. 288 (1999)**

**6 Proper development of competent medical evidence**

**Concurring opinion in *Colucci v. West* order**

**General Counsel Precedent Opinions**

**7 General Counsel Opinion 4-99**

**8 General Counsel Opinion 5-99**

**General Counsel Opinion 6-99**

**General Counsel Opinion 7-99**

**9 Questions and Answers**

**10 General Counsel Opinion 5-98 (4/2/98)**

**"Other" Service Organizations**

**11 Integrity of Claims Folders Subject to Judicial Review**

**12 Questions and Answers**

**13 Closing**

**14 Addendum I**

**15-38 Addendum II**

**Judicial Review Conference Call**

**July 1, 1999**

**60 Field Participants**

Good morning. There are a couple of announcements that I would like to
make before we get to the prepared transcript. First, there will be a
satellite broadcast on August 12. The issue to be discussed is new and
material evidence. Representatives from the C&P Service and the BVA will
be the main presenters and I'm told that we will have the infamous
"panel of experts" standing by to answer any questions you may have.

Next, we are fast approaching the end of this fiscal year and we are
beginning to look at the avenues we use to get information to you in
terms of what we should be doing in the near future. We have been using
satellite broadcasts in the recent past, and have had great success with
them. At least, that is the way we feel about it. We would like to know
how you feel about it. Should we continue with this medium? Do you send
your decision makers to these broadcasts? Do you tape them and show them
later or discuss them? Or do you tape them and put them away never to be
seen again? There are no wrong answers to these questions, so we would
appreciate your feedback. Should we explore other areas of information
dissemination, including direct person to person training? You tell me.
Please send me an e-mail and let me know what you think.

Some of you may know that we are in the process of redesigning the
rating decision. The new format will be incorporated into RBA 2000 which
will be ready for deployment sometime next year. The team has begun to
show the reformatted decision to rating specialists, service officers,
and veterans and I can tell you that the feedback has been very
positive. We are planning to field test this new format in as many as
three field stations over the course of a couple of months, using just a
few rating specialists. We have had one office already volunteer, but we
are still looking for a couple of others. If you would like to see our
smiling faces at your door, and would like to assist in the testing and
fine tuning this process, please call me or send me an e-mail.

**Statements of the Case**

During the March 24, 1999, satellite broadcast on the appellate process,
a question was asked concerning the provisions of M21-1, Part IV,
paragraph 8.06. As part of the broadcast an emphasis had been placed
upon issuance of a statement of the case upon receipt of a Notice of
Disagreement. The cited manual provisions provide instructions to
complete all indicated development before such action is taken. The
cited manual provisions will continue to be VBA policy. Upon receipt of
an NOD if additional development is indicated, such action will be
completed prior to the issuance of a Statement of the Case. If there is
no indication that development action is required, a Statement of the
Case should be issued as quickly as possible.

**Central Office**: Are there any questions about that?

**Regional Office**: We discussed the policy reciting the NODs and
additional evidence and we were wondering if the veteran files a NOD and
then says, "Oh by the way, I have additional evidence" can we
effectively say that's not a NOD yet?

**Central Office**: No. I wouldn't think so. I think you have to
consider that's a Notice of Disagreement and you have to develop the
additional referenced evidence and if our decision then is not changed,
prepare a Statement of the Case.

**Regional Office**: Thank you very much.

**Regional Office:** If the veteran that's represented expresses
unhappiness with a VA exam where do you exam it? Should the regular VA
examine it before issuing a statement of case?

**Central Office**: Yes, provided that you have determined that the
examination is, in fact, inadequate.

**Regional Office:** I have a question in that this is going to blow
timeliness although as if it's not out of control now, timeliness is
going to go down.

**Central Office**: What we are telling you is not a change in policy.
This has been procedure for quite awhile. If you have been doing this
any other way I guess we could call that a Data integrity issue and we
need to follow an established procedure. If timeliness increases
dramatically then perhaps we need to go back and readjust the goals for
our timeliness and Notice of Disagreement and we can do that. However,
we all have to do this the same way according to established procedure.

**Regional Office**: Thank you.

**PTSD Claims Based on Personal-Assault**

***Patton v. West*, 12 Vet.App. 272 (1999)**

In *Patton,* the Court looked at the "special evidentiary procedures"
for PTSD claims based on personal assault that were published in
February 1996 in M21-1, Part III, par. 5.14c. The Court noted that
paragraphs c(8) and c(9) of the cited manual provisions, when read
together, show that in personal-assault cases, VA has undertaken a
special obligation to assist a claimant in producing corroborating
evidence of an in-service stressor.

First, a claimant must submit a well-grounded claim for service
connection for PTSD based upon allegations of personal assault during
active service. In this case, the veteran 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. Since the veteran had submitted a
well-grounded claim, the Court held that he was entitled to the full
range of the special evidentiary-development procedures set forth in
M21-1, Part III, par. 5.14c, including interpretation of behavior
changes by a clinician and interpretation in relation to a medical
diagnosis.

The Court also noted that M21-1, Part III, par. 5.14c(3) and (9) appear
improperly to require that the existence of an in-service stressor be
shown by "the preponderance of the evidence." This is inconsistent with
38 USC § 5107(b) which requires that if the evidence is in equipoise,
the benefits of the doubt must be given to the claimant. The Court
stated that 38 USC § 5107(b) requires that 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.

Basically, the Court has held that the provisions in M21-1, Part III,
par. 5.14c, are regulatory and must be applied in all cases involving
allegations of in-service personal assault. Because of problems with the
Court's bulletin board, a copy of this decision is not in ARMS. For that
reason, we are appending it to the transcript of this hotline. All
regional office personnel who are involved in the development of and
decision making in personal assault claims should read this decision
carefully.

**Central Office**: Are there any questions about the Patton case?
\[None\]

**Copies of Notice Letters in the Record**

***Donovan v. West*, 11 Vet.App. 481 (1998)**

In *Donovan*, the Court looked at an issue involving the validity of a
debt in a loan guaranty case. However, this case does have an important
aspect which impacts on the adjudicative process. That is, the lack of
copies of notice letters in the record. It is extremely important that
the claims folder contain copies of all notice letters concerning
adjudicative decisions involving both the grant and denial of benefit
claims. Section 5104(a) requires VA to provide to the claimant and to
the claimant's representative notice of decisions. The Court has made it
clear that VA must be able to "prove" that such notices were actually
furnished both to the claimant and his or her representative. Absent
copies of such letters in the record, it will be difficult for VA to
prove that proper notice and appellate rights were furnished. Regional
Office personnel must ensure that copies of notice letters prepared
locally are filed in the claims folder and must ensure that copies of
BDN letters are also timely filed. Absence of such copies may toll the
one year appellate time frame.

**Central Office**: Any questions? \[None\]

*The next two cases, Jones v. West and Vanerson v. West are from one of
the June DAD packages.*

**Secondary service connection for disability due to service connected
PTSD**

***Stephen B. Jones v. West,* 12 Vet.App. 383 (1999)**

The veteran, who was service connected for post traumatic stress
disorder, (PTSD) claimed that injuries suffered as a result of a
motorcycle accident should be service connected as secondary to PTSD. In
support of this claim, the veteran submitted a statement from a VA
clinical psychologist which stated that after service the veteran had
exhibited many behavioral indications of PTSD, including thrill-seeking
behavior. The psychologist concluded that the veteran's motorcycle
accident in 1971 was the result of his thrill-seeking behavior.

At an October 1991 hearing before the BVA, the veteran described the
events leading up to his 1971 accident. He testified that he was on a
motorcycle attempting to pass a car. He determined it was safe to pass,
but when he got beside the car "his car turned sideways and I served
\[sic\] to avoid him and the center stand of my motorcycle hit the
pavement at which time, the rear wheel was picked up off the pavement
and I lost control and I went off the road." Subsequently, the
psychologist submitted another statement pointing out that there was an
increasing body of evidence "to support the notion that 'thrill seeking'
behavior is regularly seen in PTSD combat vet\[erans\]."

The Court stated that the question before it was whether there is
competent evidence to demonstrate a reasonable possibility that the
motorcycle accident was proximately caused by PTSD-induced
thrill-seeking behavior of the veteran. The Court found there was no
such evidence and that the claim was not well-grounded.

The Court stated that, in this case, the veteran was competent to
testify as to the sequence of events that led to his motorcycle
accident. The veteran's testimony established that his accident was
caused by the automobile that turned sideways while the veteran was
attempting to pass it. There was no indication in the record, however,
that the veteran's behavior was reckless or even negligent. Therefore,
as the BVA found, there is no reasonable basis in the evidence of record
to demonstrate that the proximate cause of his left leg injuries was
thrill-seeking behavior related to PTSD. For that reason the veteran's
claim is not well grounded. \[*Also see Reiber v. Brown*, 7 Vet. App.
513 (1995).\]

**Presumption of Soundness**

***Vanerson v. West,* 12 Vet.App. 254 (1999)**

The Court emphasized in this case that *clear and unmistakable evidence*
that a disability existed prior to entrance into service is required to
rebut the presumption of soundness. See 38 CFR § 3.304(a)(1998). In its
analysis, the BVA stated that "the medical evidence of record *clearly
and convincingly* establishes that a seizure disorder pre\[ \]existed
the appellant's period of military service." The Court pointed out that
the "clear and convincing" burden of proof, while a higher standard than
a preponderance of the evidence, is a lower burden to satisfy than clear
and unmistakable evidence.

According to the Court, our regulation, section 3.304(b) \[of title 38
CFR\] directs VA decision makers to consider *all* of the relevant
evidence of record when determining whether clear and unmistakable
evidence exists to rebut the presumption of soundness, *not just* the
persuasiveness of the evidence supporting preservice incurrence of the
disease or injury. The Court found that pursuant to section 3.304(b),
the question is whether the evidence, as a whole, clearly and
unmistakably demonstrates that the injury or disease existed prior to
service.

The Court rejected the BVA's decision for three reasons. First, the BVA
not only applied the more lenient clear and convincing evidence
standard, but also failed to consider *all* the evidence of record when
determining whether the presumption of soundness had been rebutted. The
BVA did not even discuss the credibility of the lay statements,
including the appellant's own testimony, that he had not suffered from
seizures prior to service. Third, the Court could find no basis in the
record on appeal for the BVA's factual finding that a VA neurological
examination established that the seizure disorder preexisted service.
According to the Court, the doctor merely noted and that there existed
records in the claims file which suggested his disorder had preexisted
service and that the appellant had been treated at the VA facility since
1980. The Court found the neurological examination inadequate and
remanded the case. On remand, VA was ordered to obtain adequate medical
opinions with respect to the ascertainable time of inception of the
seizure disorder and, if necessary, with respect to whether the
condition increased in severity during service.

**Central Office**: Are there any questions regarding that? \[None\]

**Presumptive service connection for arthritis for former POWs**

***Greyzck v. West*, 12 Vet. App. 288 (1999)**

In *Greyzck*, the Court discussed, among other things, presumptive
service connection for post traumatic osteoarthritis for former
prisoners of war (POW). The veteran had x-ray evidence which showed
degenerative arthritis of the lumbar spine. A doctor's report indicated
that the veteran's back condition was accelerated by traumatic stress
while in service. At a hearing, the veteran testified that he had
injured his back while working as a prisoner of war.

The BVA denied the claim, finding that in order to be entitled to the
presumption of service connection, there must be a diagnosis of post
traumatic osteoarthritis. The BVA also determined that the doctor's
statement was not competent medical evidence of a nexus between a
current back disability and service because the doctor did not link the
back condition to a specific trauma or incident in service.

In finding that the claim was well grounded, the Court noted that the
term osteoarthritis is a synonym of the terms degenerative arthritis and
degenerative joint disease. Therefore, post traumatic degenerative joint
disease or degenerative arthritis suffered by a veteran who was held as
a prisoner of war for more than thirty days is subject to presumptive
service connection.

The veteran's statement about a back injury in service satisfied the
first element of a well grounded claim, that of service incurrence.
Medical evidence demonstrates the veteran has degenerative arthritis in
his lumbar spine. The doctor's report indicated that the veteran's back
condition was accelerated by traumatic stress while in service. For the
purpose of well grounding the claim, this statement sufficed as a
medical nexus between the in service incurrence and a current
disability.

We mention this case as a reminder that in reviewing claims of former
POWs, the provisions of all applicable laws and regulations should be
taken into account. This includes, but is not limited to, all applicable
laws, regulations and manual provisions, which we will note in the
transcript. \[These are 38 USC section 1112, 38 CFR sections 3.304(e)
and 3.307(a)(5) and 3.309(c) and M21-1, Part VI, paragraphs 1.02c and
7.23.\]

**Central Office**: Any question on that case? \[None\]

**Proper development of competent medical evidence**

**Concurring opinion in *Colucci v West* order**

An opinion concurring with an order denying reconsideration or a panel
decision, which was written by the Chief Judge, prompted us to remind
you that if all evidence is favorable in a given claim for service
connection and the evidence is sufficient to establish all elements
necessary for service connection, service connection must be granted.
For example, if the record shows a medical opinion which connects the
claimed condition to service, a decision maker cannot deny the claim
based upon his or her own medical knowledge. A decision maker has the
discretion to send the claims folder containing all the evidence to a
medical professional for his her competent opinion on the connection of
the claimed condition to service. If the new opinion does not support
the conclusion that the claimed condition is connected to service, the
evidence must then be weighed. If the evidence is equal in weight -- on
in equipoise -- a grant is in order. If the evidence against the claim
outweighs the evidence in favor of a grant of service connection, and
you feel the claim must be denied, this must be fully explained in your
decision.

**Central Office**: Are there any questions about that? \[None\]

**General Counsel Precedent Opinions**

*Several General Counsel precedent opinions have been released since the
last hotline. These have not yet been assessed, so we are summarizing
them here for your information. These General Counsel opinions include
topics relating to well grounded claims for disability due to
undiagnosed illness, payment of DIC stemming from disabilities resulting
from substance abuse, claims for individual unemployability when a 100
percent schedular evaluation is in effect and scope of the term spina
bifida.*

**General Counsel Opinion 4-99**

General Counsel Opinion 4-99 described what evidence is necessary to
establish a well grounded claim for disability due to an undiagnosed
illness suffered by a veteran of the Persian Gulf War. Generally, there
are four elements of a well grounded claim for compensation for
disability due to undiagnosed illness. These are evidence of (1) active
service in the Southwest Asia theater of operations during the Persian
Gulf War; (2) the manifestation of one or more signs or symptoms of
undiagnosed illness; (3) objective indications of chronic disability
during the relevant period of service or to a degree of 10 percent or
more within the specified presumptive period; and (4) a nexus between
the chronic disability and the undiagnosed illness.

Evidence that the illness is "undiagnosed" may consist of evidence that
the illness can not be attributed to any known diagnosis or, at minimum,
evidence that the illness has not been attributed to any known diagnosis
by physicians providing treatment or examination.

For purposes of the second and third elements, the *manifestation of
signs or symptoms of undiagnosed illness* or *objective indications of
chronic disability* may be established by lay evidence if the claimed
signs or symptoms or indications are of a type which would ordinarily be
susceptible to identification by lay persons. On the other hand, if the
claimed signs, symptoms or indications are of a type which would
ordinarily require the exercise of medical expertise for their
identification, then medical evidence would be required to establish a
well grounded claim. Medical evidence would ordinarily be required to
satisfy the fourth element, although lay evidence may be sufficient in
cases where the nexus between the chronic disability and the undiagnosed
illness is capable of lay observation.

**Central Office**: Any questions on this?

**Regional Office**: Regarding well grounded requirement number four, a
nexus between chronic disability and undiagnosed illness. We are under
the impression that the undiagnosed illness is the chronic disability.
Can you distinguish one from the other?

**Central Office**: If you have a chronic disability, it can be
diagnosed. What we are looking at for purposes of this regulation are
conditions which we can't diagnose. We have symptoms that don't present
a diagnosis and for the purposes of this regulation, I believe they
specify a period of six months in order to qualify as a chronic
condition under this regulation. When we talk about chronic, I believe
that is the standard that this regulation employs. Look at the criteria
contained

in that and I think that's where we're talking about chronic in relation
to this opinion.

**Regional Office**: Thanks.

**General Counsel Opinion 5-99**

In this opinion, the General Counsel held that the term "spina bifida"
refers to a defective closure of the bony encasement of the spinal cord,
but does not include other neural tube defects such as encephalocele and
anencephaly. This opinion impacts on all claims for benefits for
children of Vietnam veterans who are born with spina bifida adjudicated
under the provisions of chapter 18 of title 38, United States Code.

**Central Office**: Are there any questions? \[None\]

**General Counsel Opinion 6-99**

General Counsel Opinion 6-99, dated June 7, 1999, held that a claim for
a total disability rating based on individual unemployability (IU) for a
particular service-connected disability *may not be considered* when a
schedular 100-percent rating is already in effect for another service
connected disability. Further, the General Counsel held that no
additional monetary benefit would be available in the hypothetical case
of a veteran having one service connected disability rated 100 percent
disabling under the rating schedule and another, separate disability
rated totally disabling due to IU.

In reaching the conclusion that an IU claim may not be considered when a
100 percent disability rating is in effect, the General Counsel noted
that both a 100 percent schedular rating and a total disability rating
awarded pursuant to section 4.16(a) reflect unemployability.
Accordingly, if an individual has a 100 percent schedular rating, a
determination that the individual is unemployable as a result of service
connected disabilities under section 4.16(a) is unnecessary to
adequately compensate the individual and superfluous. In other words, VA
can find a veteran to be totally disabled either under the rating
schedule or, if the veteran does not meet the criteria for a 100 percent
schedular rating but is in fact unemployable, under section 4.16(a).

**Central Office**: Any questions on this General Counsel Opinion?
\[None\]

**General Counsel Opinion 7-99**

As you know, the law precludes *direct* service connection of \-- or
payment of disability compensation for \-- a substance abuse disability
(that is a disability caused by the veteran's own abuse of alcohol or
drugs) for purposes of all VA benefits including dependency and
indemnity compensation (DIC). However, service connection under 38 CFR §
3.310(a) of a substance abuse disability that is secondary to a service
connected disability is not precluded by law. However, disability
compensation cannot be paid for such a disability.

Similarly, aggravation of a substance abuse disability by a service
connected disability can be service connected under section 3. 310(a)
for purposes of all VA benefits, but disability compensation cannot be
paid for such aggravation.

According to this GC opinion, DIC may be awarded to a veteran's
survivors based on either the veteran's death from a substance abuse
disability secondarily service connected or on the provisions of section
1318. \[That is, based on a veteran's death while in receipt of or
entitled to receive compensation for a substance abuse disability
secondarily service connected and continuously rated totally disability
for an extended period immediately preceding death.\] DIC is payable
because the law -- section 8052 of the OBRA 1990 *did not amend section
1310*, the statute that authorizes the payment of DIC for service
connected death. Section 1310(a) authorizes DIC "\[w\]hen any veteran
dies . . . from a service connected or compensable disability." That
section makes no distinction between disabilities service connected on a
direct or secondary basis and contains no prohibition concerning
substance abuse disabilities.

**Central Office**: Any questions at this point?

**Regional Office**: How are we going to code these decisions for future
applications in DIC claims and to establish entitlement for benefits
other than compensation?

**Central Office**: Are you asking about somehow keeping a control of
these so that you can award DIC after the veteran dies?

**Regional Office**: Yes. And also we can pay for his entitlement to
benefits after the compensation as well for a live veteran.

**Central Office**: I don't know about coding the files, you would have
to probably get an application for whatever the other benefit is and
then make your decision based on the facts in the file. You may find
that they are entitled to Chapter 35 where you can't pay compensation.
You should be looking at the claims file with the application for the
other benefits.

**Regional Office**: I was under the impression the code sheet was a
compilation of every decision that was made in the past that we could
carry forward those decisions for future applications.

**Central Office**: Explain in the rating decision what you are doing
and why. In other words, if you secondarily service connected something,
but your not going to pay compensation, you still need to evaluate the
disability because there may be entitlement to certain other benefits if
that disability is 100%. So, you just need to explain that in your
rating decision, what you are doing and why, but not necessarily on the
code sheet itself.

**\[NOTE: Addendum I is a sample of the RB2000 format for these
cases.\]**

**Regional Office**: Would it be appropriate to just put a parenthetical
remark?

**Central Office**: Sure. That will be fine.

**Regional Office**: And I also assume that this refers to the virtual
claims under Wingo, et al? Do we go back ten years and see if the record
would establish entitlement?

**Central Office**: Yes.

**General Counsel Opinion 5-98 (4/2/98)**

The opinion states that VA has no authority to recall estate funds
derived from VA payments when a beneficiary dies without a will, has a
federal fiduciary, and has known heirs. Further, VA may not distribute
estate funds when they are returned by a federal fiduciary. The estate
can only be disposed of by an appropriately appointed estate
administrator in accordance with the laws of the state where the
beneficiary was domiciled at time of death.

Fiduciary activities will advise federal fiduciaries that in the event
of the beneficiary's death without a will and known heirs exist, the
fiduciary will release estate funds derived from VA payments to the
estate administrator. If the fiduciary returns the funds to VA,
fiduciary activity staff will, with the assistance of the Regional
Counsel, seek an appropriate estate administrator through a court of
competent jurisdiction. Once the administrator is appointed, VA will
release estate funds to him or her for distribution.

**Central Office**: Are there any questions? \[None\]

**"Other" Service Organizations**

There are a couple of other issues we would like to discuss today. The
first one deals with recognition of "other" organizations appointed by a
claimant as their representative. During the April 29, 1999, satellite
broadcast on Powers of Attorney, we briefly discussed recognition of
National Service Organizations and their service officers. Criteria for
such recognition are found in 38 CFR §§ 14.628 and 14.629. Under those
sections, "other" organizations may also represent the claimant if they
are veterans' service organizations primarily involved in delivering
services connected with either title 38 United States Code benefits and
programs, or other Federal and State programs designed to assist
veterans. There are currently 11 organizations which are recognized as
"other" organizations, as opposed to national or state organizations.
Those 11 are:

American Defenders of Bataan and Corregidor, Inc.

American GI Forum, National Veterans Outreach Program

Italian American War Veterans of the United States, Inc.

National Amputation Foundation, Inc.

National Association for Black Veterans, Inc.

National Association of County Veterans Service Officers

National Veterans Legal Services Program (NVLSP)

The Retired Enlisted Association

Swords to Plowshares, Veterans Rights Organization

Veterans Assistance Foundation, Inc.

Vietnam Era Veterans Association

A question has arisen as to the Power of Attorney document required for
the claims folder. As these are organizations covered by the criteria
found in sections 14.628 and 14.629, the claimant must complete and
submit VA Form 21-22, Appointment of Veterans Service Organization as
Claimant's Representative. As with a National Service Organization, a
claimant may appoint an "other" organization such as the NVLSP as their
representative or they may appoint an accredited service officer from
that organization. Accredited representatives of an "other" organization
can be found in Information Bulletin 2-151, Service Organization
Representatives Currently Recognized in the Presentation of Claims
Before the Department of Veterans Affairs, and its supplements. Please
note that there may be a month or two timelag before the bulletin is
updated. As we said on the broadcast, if there is any question about the
accreditation status of a representative who is not included in the
bulletin, please consult with your office's Regional Counsel.

In the case of the NVLSP, many of their accredited service officers are
also attorneys. Your first notice of such representation may be in the
receipt of an attorney fee agreement between the claimant and the
accredited service officer. If you receive such a document, then you
should notify the claimant of its receipt and ask the claimant if he or
she wishes the NVLSP (or specific accredited attorney) to represent them
before VA. If they do, then they should complete VA Form 21-22. Receipt
of a VA Form 21-22 appointment, automatically revokes any previous Power
of Attorney. Absent a VA Form 21-22, VA has no authority to communicate
on behalf of the claimant with any accredited representative from any
accredited national or "other" service organization. If you have any
questions concerning a specific case, please call the Judicial Review
Staff for guidance.

Finally, attorney fees are not payable to "other" service organizations
recognized under the provisions of section 14.628, nor are they payable
to individual representatives of those organizations acting as
representatives of the organization.

**Central Office**: Are there any questions on this area? \[None\]

**Integrity of Claims Folders Subject to Judicial Review**

Under the provisions of M21-1, Part II, paragraph 4.18, regional offices
are required to take precautions to ensure the integrity of claims
folders for a 150-day period following a Board of Veterans' Appeals
decision that is subject to appeal to the Court of Appeals for Veterans
Claims (CAVC or Court). The BVA has been issuing split decisions, i.e.,
making a decision on each issue in a claim that is completely developed
while continuing to remand those issues that are not yet ready for final
determination. Under Section 302, Public Law 103-446, ROs are required
to provide for expeditious treatment of remands from both the Court and
the BVA.

On March 21, 1997, VHA Directive 97-016, Maintaining the Integrity of
Claims Folders Subject to Possible Appeal to the Court of Veterans
Appeals, was issued by the Under Secretary for Health. The directive
established policy for maintaining the integrity of claims folders while
under the jurisdiction of VHA. In all-station letter 97-42, dated April
18, 1997, we notified all ROs of that directive. Effective with the date
of all-station letter 97-42, the provisions in M21-1, Part II, paragraph
4.18 which do not allow for the temporary transfer of folders to the
VAMCs during the 150-day control period had been rescinded.
Unfortunately, the manual provisions were not revised. Although the
all-station letter has been rescinded, the VHA directive is still in
effect. We will be revising paragraph 4.18 to accurately reflect those
changes as quickly as possible.

**Central Office**: Are there any questions about any of today's topics?

**Regional Office**: Can we go back to the rating redesign?

**Central Office**: Sure.

**Regional Office**: You say that this was going to be available in RBA
2000?

**Central Office**: Right.

**Regional Office**: When do we anticipate that coming out?

**Central Office**: There's a prohibition or moratorium on exporting any
new technology to the field because of Y2K until May 1 of the year of
2000 and that's the anticipated release date for RBA 2000.

**Regional Office**: In fact, there has not been a final decision made
that this will be the final product?

**Central Office**: That which will be the final? The rating decision
format that we have?

**Regional Office**: I have a format in front of me that is an example.
It is five pages with references attached. What was the thinking as far
as having the references attached? I know the service organizations love
it.

**Central Office**: They like it and so far the veterans we've
interviewed seem to like it. Probably the final format will be decided
by what the veterans themselves want. But, that has not been finally
decided.

**Regional Office**: The veterans that we interviewed, were they focus
groups from different RO's or whatever?

**Central Office**: Not focus groups. We just walked into contact areas
and just talked to some people.

**Regional Office**: Okay.

**Regional Office**: We received on April 2, 1999, a fast letter telling
us that there was a possibility the department would consider whether to
seek further review of the Hix decision. Do we know at this time if we
will in fact be asking further review of that decision?

**General Counsel**: We have asked Justice Department to take an appeal
in that decision and they have in fact filed a Notice of Appeal. The
final decision has not yet been made as to whether to continue the
preceding appeal by the Solicitors General's office but we are fairly
confident at this time that the appeal will proceed. So there has been a
Notice of Appeal filed, there is an appeal pending in the Hix case.

**Central Office**: Okay. The next Judicial Review Conference call will
be on October 7, 1999, at 11:00 a.m. EST. Have a nice good and safe
4^th^ of July.

[ADDENDUM I]{.underline}

JURISDICTION: 020; 2 Claim for increase received 11-4-98

1.  SC (PTE INC)

7347 PANCREATITIS (due to substance abuse)

10% from 8-26-89

6210 CHRONIC OTITIS EXTERNA

10% from 8-26-89

8.  NSC (PTE)

9405 DEPRESSION WITH PTSD

5019 BURSITIS OF HIPS

5295 BACK INJURY

6100 HEARING LOSS

COMB SC: 20% from 8-26-89

The following disabilities are service connected for all benefits except
payment of compensation (secondary SC/substance abuse):

8613 POLYNEUROPATHY

20% from 7-14-94

7913 DIABETES MELLITUS

20% from 1-16-92

The combined evaluation, which includes disabilities for which payment
of compensation is authorized and substance abuse disabilities
secondarily service connected for which compensation is not authorized,
is as follows:

20% from 8-26-89, 40% from 1-16-92, 50% from 7-14-94.

**\[NOTE: This is the format that will be implemented with RB2000. It is
suggested that each office either maintain a copy of each decision or a
log of each case for input in the Master Record at that time.\]**

Addendum II

**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

No. 97-828

[Dorrance H. Patton, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Togo D. West, Jr.,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee]{.smallcaps}.

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\[;\] . . . \[i\]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.*** \"\[A\] person who submits a claim for
benefits under a law administered by the Secretary shall have the burden
of submitting evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded.\" 38 U.S.C.
§ 5107(a). A well-grounded claim is \"a plausible claim, one which is
meritorious on its own or capable of substantiation. Such a claim need
not be conclusive but only possible to satisfy the initial burden of
\[section 5107(a)\].\" *Murphy v. Derwinski*, 1 Vet.App. 78, 81 (1990).
The Court has held that a PTSD claim is well grounded where the veteran
has \"submitted medical evidence of a current disability; lay evidence
(presumed to be credible for these purposes) of an in‑service stressor,
which in a PTSD case is the equivalent of in‑service incurrence or
aggravation; and medical evidence of a nexus between service and the
current PTSD disability\". *Cohen (Douglas) v. Brown*, 10 Vet.App. 128,
136-37 (1997). The credibility of the evidence presented in support of a
claim is generally presumed when determining whether it is well
grounded. *See Elkins v. West*, \_\_ Vet.App. \_\_, \_\_, No. 97-1534,
slip op. at 15 (Feb. 17, 1999) (en banc) (quoting *Robinette v. Brown*,
8 Vet.App. 69, 75-76 (1995)). The determination whether a claim is well
grounded is subject to de novo review by this Court. *See Elkins*,
*supra*; *Robinette*, 8 Vet.App. at 74.

Pursuant to section 5107(a), once a claimant has submitted a
well-grounded claim, the Secretary is required to assist that claimant
in developing the facts pertinent to the claim. *See* 38 C.F.R. § 3.159
(1998); *Littke v. Derwinski*, 1 Vet.App. 90, 91-92 (1990). The section
5107(a) duty to assist may, in an appropriate case, include a VA duty to
seek to afford the claimant an opportunity to respond to a VA request
for additional information when the information provided by the claimant
is found to be insufficient, *see Cohen (Douglas)*, 10 Vet.App. at
148-49, and to inform the claimant of additional information sought by
VA, *Zarycki v. Brown*, 6 Vet.App. 91, 99-100 (1993). The Secretary has
a duty to advise a claimant that he or she may corroborate his or her
assertions by submitting alternate forms of evidence, such as statements
from eyewitnesses. *See* 38 C.F.R. § 3.159; *Dixon v. Derwinski*, 3
Vet.App. 261, 263 (1992). In addition, at a VA hearing (including
hearings before the BVA) the presiding officer has \"the responsibility
. . . to . . . suggest the submission of evidence which the claimant may
have overlooked and which would be of advantage to the claimant\'s
position.\" 38 C.F.R. § 3.103(c)(2) (1998); *see Douglas v. Derwinski*,
2 Vet.App. 435, 440-42 (1992) (en banc) (reaffirming *Douglas v.
Derwinski*, 2 Vet.App. 103, 110 (1992)).

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 persuasive or 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]{.smallcaps} 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. In 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]{.smallcaps} M21-1, Part III, ¶ 5.14b(3). As to personal-assault
PTSD claims, more particularized requirements are established.
Specifically, [Manual]{.smallcaps} 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;
>
> \(c\) 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]{.smallcaps} 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 \"\[b\]ehavior changes
that occurred at the time of the incident may indicate the occurrence of
an in-service stressor\" [(Manual]{.smallcaps} 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]{.smallcaps} 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]{.smallcaps} 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]{.smallcaps} 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 (\"\[i\]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 that 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]{.smallcaps} 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\", \"\[s\]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]{.smallcaps} 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]{.smallcaps} M21-1, Part III, ¶ 5.14c(6), (7); *see also*
[Manual]{.smallcaps} 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]{.smallcaps} 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]{.smallcaps}, Part III, ¶ 5.14c; *see also* 38 C.F.R.
§ 3.103(c)(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) (\"\[i\]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]{.smallcaps}
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.*** Our dissenting colleague raises
essentially three points of disagreement. First, he challenges our
consideration of the Manual M21-1 provision dealing specifically with
personal-assault cases when the appellant did not cite that provision to
the Court in his brief. As we noted in part II.B.2., above, this Court
has held the predecessor Manual M21‑1 provisions in ¶ 7.46 (1995) to be
the equivalent of binding VA regulations. *See Cohen (Douglas)*,
10 Vet.App. at 139; *Hayes*, *supra*. The successor provision, ¶ 5.14,
and specifically subparagraph c, was raised by the Secretary in his
pleading, Motion at 16, along with citation to *YR*, *supra*. We think
it the better course for this Court not to hold that the appellant has
waived enforcement of a Manual M21-1 provision regarding
personal-assault PTSD claims that this Court applied for the first time
in *YR*, a case decided on August 27, 1998, after the appellant had
filed his brief in this case. The appellant\'s attorney in this case,
for example, was aware of and did cite the Manual M21-1 provision on
PTSD, ¶ 50.45, from 1989, which did not include any special provision on
personal assault as the asserted stressor. Appellant\'s Br. at 16-17.
Because the Manual M21-1 is not published and is not readily available,
a general practitioner before this Court is largely dependent on
references in this Court\'s published opinions to such rather esoteric
regulation-like provisions. The Manual M21-1 ¶ 5.14c provision on
personal-assault PTSD claims was not discussed in any opinion of this
Court until August 11, 1998, in *Anglin*, 11 Vet.App. at 368; *cf.
Dizoglio v. Brown*, 9 Vet.App. 163, 167 (1996) (citing, without
description, [Manual]{.smallcaps} M21-1 ¶ 5.14 as part of a \"*see
also*\" cite following a cite to ¶ 7.46(g)(3) in a
***non***-personal-assault context), six days before the appellant\'s
brief was filed here, and even then subparagraph c was not specifically
cited there by the Court.

Indeed, this Court routinely remands cases under *Karnas*, *supra*, for
compliance with new law or regulation, without either party\'s having
raised the applicability of the new legal authority. *See*, *e.g.*,
*Kingston v. West*, 11 Vet.App. 272 (1998) (remanding for Board
application of amended 38 C.F.R. § 4.130); *Cohen (Douglas)*,
10 Vet.App. at 138-39 (applying more recent version of Manual M21-1
provision on PTSD claims that was added while appellant\'s claim was
pending); *Hayes v. Brown*, 5 Vet.App. 60, 67 (1993) (same).

Under these circumstances, and in light of this Court\'s longstanding
adherence to *Karnas*, *supra*, as to the applicability of regulatory
changes while an appeal is pending (here the RO decision was issued in
December 1994, well over a year before ¶ 5.14 was adopted), the Court
believes that substantial interests of justice dictate that the Court
require the Secretary to adhere to his own regulatory provisions, just
as did the Court in *YR* and *Cohen (Douglas)*, both *supra*. *See Cohen
(Douglas)*, 10 Vet.App. at 143 (citing *Sutton v. Brown*, 9 Vet.App.
553, 568-69 (1996) (citing *Morton v. Ruiz*, 415 U.S. 199, 232 (1974),
*Vitarelli v. Seaton*, 359 U.S. 535, 538, 539-40 (1959), and *Service v.
Dulles*, 354 U.S. 363 (1957)), to the effect that \"the Board is not
free to disregard VA regulations\")). Moreover, the U.S. Supreme Court
has made clear that \"\[w\]hen an issue or claim is properly before the
court, the court is not limited to the particular legal theories
advanced by the parties, but rather retains the independent power to
identify and apply the proper construction of governing law\". *Kamen v.
Kemper Financial Services, Inc*., 500 U.S. 90, 99 (1991).

The dissent cites *Carbino v. West*, \_\_ F.3d \_\_, No. 98-7035 (Fed.
Cir. Feb. 12, 1999). The question there, however, was whether under its
rules this Court could properly deny consideration of an argument not
raised until the reply brief, *id*. at \_\_, slip op. at 2; not, as
here, whether the Court has the authority to \"decide all relevant
questions of law\", 38 U.S.C. § 7261(a)(1), whether raised by a party or
not (a question the Federal Circuit did not address in *Carbino*). In
fact, in each of the additional cases cited by the dissent, we find
support for the proposition that U.S. courts of appeals have the
discretion to raise legal issues not raised by a party. *See* *Davis v.
United States*, 512 U.S. 452, 464, 465 (1994) (Scalia, J., concurring)
(although \"refusal to consider arguments not raised is a sound
prudential practice, . . . there are times when prudence dictates the
contrary\"; courts have \"obligation to decide according to law\");
*United States v. Dickerson*, \_\_ F.3d \_\_, \_\_, 1999 WL 61200
\*12-13 (4th Cir. Feb. 8, 1999) (considering constitutionality of
statute where U.S. Government elected not to pursue issue); *Carducci v.
Regan*, 714 F.2d 171, 177 (D.C. Cir. 1983) (although appellant courts
are essentially \"arbiters of legal questions presented and argued by
the parties before them\[,\] . . . not all legal arguments bearing upon
the issue in question will always be identified by counsel, and we are
not precluded from supplementing the contentions of counsel through our
own deliberation and research.\"); *see also Singleton v. Wulff*,
428 U.S. 106, 1221 (1976) (\"\[t\]he matter of what questions may be
taken up and resolved for the first time on appeal is one left primarily
to the discretion of the courts of appeals, to be exercised on the facts
of individual cases\").

Next, the dissent argues that the veteran\'s PTSD claim is not well
grounded because his self-asserted stressor is not corroborated by other
evidence. We find this to be quite a surprising proposition, given that
*Cohen (Douglas)*, 10 Vet.App. at 137, held unequivocally that a PTSD
claim was well grounded where there was \"lay evidence (presumed to be
credible for these purposes \[of determining well groundedness\]) of an
in‑service stressor\" (*accord* *Winters v. West*, \_\_ Vet.App. \_\_,
\_\_, No. 97‑2180, slip op. at 6 (Feb. 17, 1999) (en banc); *Henderson
v. West*, 12 Vet.App. 11, 19 (1998); *Samuels v. West*, 11 Vet.App. 433,
435 (1998)) and given that *YR*, authored by the dissenting judge here,
held that the PTSD claim there was well grounded when the occurrence of
the in‑service stressor was based, in part, on the veteran\'s assertion
of a sexual assault, \"\[a\]ssuming the truth of \[the veteran\'s\] and
her sister\'s testimony that \[the veteran\] was raped in service\".
*YR*, 11 Vet.App. at 398.

Finally, our dissenting colleague further contradicts his own holding in
*YR* by insisting that corroboration of an in-service stressor by the
testimony of a mental-health professional in a personal-assault case
can***not*** suffice as the corroboration of a noncombat stressor that
is required by 38 C.F.R. § 3.304(f) for service connection for PTSD to
be awarded in the adjudication of the claim on the merits. As we pointed
out in part II.B.2.b., above, Manual M21-1 ¶ 5.14c(8) and (9), when read
together, 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 PTSD claim, in producing corroborating
evidence of an in-service stressor, including interpretation of the
veteran\'s behavior changes by a clinician. *Ante* at \_\_, slip op. at
11. Hence, as we also pointed out, *YR* had remanded the claim there in
part because the Board had \"entirely failed to consider the hypnosis
evidence \[provided by the licensed social worker\], let alone discuss
its weight and credibility\" or provide an adequate statement of
\"reasons or bases . . . for its acceptance or rejection\". *Ante* at
\_\_, slip op. at 12 (quoting *YR*, 11 Vet.App. at 398).

For the above reasons, we cannot agree with our dissenting colleague.

**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(c)(2), 3.159, 3.304(f), 19.9(a); [Manual]{.smallcaps}
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: I respectfully dissent with the holding
of the majority. First of all, I dissent because by sua sponte raising
issues not appealed, the majority\'s opinion is directly in conflict not
only with precedent established by this Court and the Federal Circuit,
but also with longstanding rules of procedures in appellate courts.

In *Carbino v. Gober*, 10 Vet.App. 507 (1997), this Court declined to
address a duty to assist argument relating to [Manual]{.smallcaps} M21-1
which was first raised by the appellant in his reply brief. *Id.* at
511. The Court found that the appellant violated \"rule 28(a)(3) of the
Court\'s Rules of Practice and Procedure which requires a statement of
issues in the appellant\'s brief\" rather than in his reply brief. *Id.*
On appeal, the U.S. Court of Appeals for the Federal Circuit affirmed
this decision. *Carbino v.  West*, \_ F.3d \_, No. 98-7035 (Fed. Cir.
Feb. 12, 1999). In affirming this decision, the Federal Circuit
embellished upon this Court\'s narrow holding by stating:

> The Court of Veterans Appeals is authorized by statute to prescribe
> rules for the conduct of its proceedings. The court\'s Rule 28(a)(3)
> is similar to the corresponding rule of the Federal Rules of Appellate
> Procedure. In applying that rule, courts have consistently concluded
> that the failure of an appellant to include an issue or argument in
> the opening brief will be deemed waiver of the issue or argument. We
> agree with the Court of Veterans Appeals that the question . . . was
> not properly and timely raised under that court\'s rules.

*Id.* at \_\_, slip. op. at 3 (citations omitted). In that case, the
appellant argued that 38 U.S.C. § 7261(a)(1) obliged the Court to
\"\'decide all relevant questions of law\' necessary to its decision,
and that the untimely raised issue was such a question of law.\" *Id.*
(quoting 38 U.S.C. § 7261(a)(1)). However, the Federal Circuit rejected
this argument by stating: \"Section 7261(a) provides only that the Court
of Veterans Appeals \'shall\' decide all relevant questions of law \'to
the extent necessary to its decision and *when presented*.\'\" *Id.*
slip. op*.* at 3-4 (quoting 38 U.S.C. § 7261(a)(1) (1994)) (emphasis
added by Federal Circuit).

The opinion of the Federal Circuit is consistent with long established
rules of appellate practice. The role of appellate courts is to review
issues presented to them. \"The premise of our adversarial system is
that appellate courts do not sit as self-directed boards of legal
inquiry and research, but essentially as arbiters of legal questions
presented and argued by the parties before them.\" *Carducci v. Regan*,
714 F.2d 171, 177 (D.C. Cir. 1983). It is \"sound judicial practice\" to
avoid issues not raised by the parties. *United States v. Dickerson*, \_
F.3d \_, 1999 WL 61200 \*2 (4th Cir. 1999) (Michael, C.J., dissenting)
(citing *Davis v. United States*, 512 U.S. 452, 464 (1994) (Scalia, J.,
concurring). Appellate courts perform their role as arbiters best \"when
the parties raise the issues, and both sides brief and argue them
fully.\" *Id.* In other words, the role of an appellate court does not
encompass presenting arguments on behalf of a party but rather deciding
issues presented to it.

In this case, the appellant, through his attorney, has not raised the
issues discussed by the majority: inadequate reasons or bases or a
violation of the duty to assist in general, let alone specifically
mentioning the particular [Manual]{.smallcaps} M21-1 provisions. By
failing to raise such arguments in his brief, the appellant has
effectively waived his right to appellate review on these issues. The
Secretary, of course, has not had an opportunity to respond to the
majority\'s \"arguments.\" I do not believe, therefore, that the Court,
in a case where the appellant is represented by qualified counsel,
should sua sponte raise these issues when they are not presented for
review. By raising issues not presented, the majority\'s holding is in
conflict with 38 U.S.C. § 7261(a) and the Federal Circuit\'s
interpretation of that statute in *Carbino.*

Not only has the appellant failed to raise the issue of the duty to
assist before the Court, he never raised that issue before the Board.
*Compare Carbino, supra* (noting the importance of the fact that the
appellant had not raised the duty to assist argument with the Board)
*with Ledford v. West*, 136 F.3d 776 (Fed. Cir. 1998) (Court\'s
jurisdiction premised on issues raised to the Board). In fact, the
appellant, through his accredited service organization, conceded before
the Board that no other evidence is available by stating \"The events
described by Mr. Patton are in the large majority of case \[sic\]
impossible to verify through official channels.\" Rather than attempt to
retrieve information which does not exist, the appellant focused his
argument on the credibility of his testimony by arguing \"We believe
that Mr. Pattons \[sic\] testimony, under oath, is credible. That
testimony, along with Dr. Billingsly\'s thorough report should allow a
grant of the benefit sought.\"

Nonetheless, the majority contends that the Board failed to give
adequate reasons and bases for its decision. On the contrary, I would
find that the Board more than met this requirement. In its decision, the
Board correctly held that the appellant suffered from a
noncombat-related stressor and, thus, he must present credible evidence
supporting his allegations. The Board then noted that the appellant
conceded that the only contemporary evidence to corroborate his alleged
stressor were his service medical records which reference some
psychological problems. The Board then concluded that this evidence was
insufficient to corroborate his claim of an in-service stressor. In sum,
the Board found that no evidence in the claims file corroborates the
appellant\'s allegations nor has the appellant pointed to any evidence
available which might provide such support.

The most likely reason the appellant did not raise duty to assist before
the Board or this Court is because he realized that there is no other
information available to retrieve. In this case, the appellant, VA, and
the Board exhaustively researched virtually every avenue to substantiate
this claim. The fact of the matter is that there is apparently no
evidence available. The appellant, therefore, has failed to carry his
burden of establishing a well-grounded claim. The only piece of evidence
that the appellant claims to exist which is not in the record on appeal
is the testimony of the unnamed sergeant (or corporal \-- the appellant
was not certain) from an unknown unit who allegedly instructed him not
to tell anyone about the assault. Unquestionably, the Secretary has not
assumed the duty to identify every noncommissioned officer stationed at
Fort Bragg 40 years ago, produce their current addresses (assuming they
could be found and the Privacy Act permitted their release), and query
them to provide corroborating evidence to this claimant. The VARO given
this task would have to devote virtually full time to this case alone.

The majority further contends that the appellant\'s history should be
\"clinically interpreted\" to determine whether it constitutes
corroborating evidence. However, this has already been performed by Dr.
Billingsly in his January 1994 compensation and pension examination.
Dr. Billingsly, after reviewing the appellant\'s entire history,
concluded that it was entirely consistent with a person who had suffered
such an in-service stressor. Yet this Court has held that such evidence
cannot constitute corroborating testimony because the treating physician
has no personal knowledge of the events in question. *See Moreau
v. Brown*, 9 Vet.App. 389 (1996); *cf. LeShore v. Brown*, 8 Vet.App. 406
(1995). Therefore, not only has this evidence already been produced,
such evidence would never be of assistance to the appellant\'s claim
under the Court\'s case law.

The crux of this case is even after years of attempting to produce
evidence, the appellant has never submitted a well-grounded claim.
Contrary to the majority\'s findings, there is no evidence that the
in-service stressor occurred. First, the majority opinion attempts to
bootstrap the appellant\'s own statements to provide corroborating
evidence. The majority\'s conclusory statement in finding that the
appellant has satisfied the requirement of a well-grounded claim, \"He
has provided . . . lay evidence of a sexual assault as a noncombat
in-service stressor,\" cites to the appellant\'s own oral testimony
before the Board. Obviously, the appellant\'s own testimony cannot
corroborate his own allegations.

Later in the opinion, the majority finds that the Board failed to
discuss other evidence in the record which might corroborate the
appellant\'s allegations. This analysis is flawed for several reasons.
First, the majority never finds that such evidence does corroborate the
appellant\'s allegations, but avers that the Board erred by failing to
discuss them. In fact, the majority states \"If the stressor is
verified, the Board must then proceed to adjudicate fully the matter . .
. .\" However, the majority had already found that the appellant had
submitted a well-grounded claim, thus, his stressor must already be
corroborated, yet the majority fails to state the grounds for such an
assertion, other than the appellant\'s own testimony. Second, none of
the evidence offered by the majority supports the appellant\'s
allegations. While this evidence certainly does not contradict the
appellant\'s testimony, only by drawing broad and groundless inferences
can the majority use this evidence to corroborate the appellant\'s
testimony. For example, the statement by the appellant\'s mother that
\"something had happened to him in the service\" could mean virtually
anything including his self-described \"shame\" for failure to complete
his military service. His mother has no firsthand knowledge of the
incident nor does she state that the appellant had confided in her about
the assault. The Board\'s basic conclusion, that the appellant has
failed to offer any evidence to corroborate his story is correct. None
of the evidence cited to by the majority offers and proof to
substantiates the appellant\'s claims. The Board, therefore, correctly
found his claim not well grounded. For these reasons, I would affirm the
decision of the Board.