Citation Nr: 18140133 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 13-18 948 DATE: October 2, 2018 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran is currently diagnosed with PTSD. 2. The stressor event of a military sexual trauma (MST) occurred during a period of active service. 3. The current acquired psychiatric disorder is related to the in-service military sexual trauma. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from May 1974 to April 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision of the Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, determined that new and material evidence had not been received to reopen service connection for PTSD and depression, and denied a TDIU. Subsequently, a May 2017 Board decision reopened and remanded the issue of service connection for an acquired psychiatric disorder. The Veteran testified from Winston-Salem, North Carolina, at an August 2016 Board Videoconference hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The representative was not present at the August 2016 Board hearing; however, the Veteran expressly stated on the record that he waived the representative’s presence and wanted to proceed with the hearing. See August 2016 Board hearing transcript. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for PTSD, no further discussion of VA’s duties to notify and to assist is necessary. Service Connection for Acquired Psychiatric Disorder Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Under 38 C.F.R. § 3.304(f)(5), VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. The Veteran contends that service connection is warranted because the claimed PTSD was caused by an in-service sexual assault. Specifically, a June 2006 statement reflects that the Veteran wrote that he was sexually assaulted in service after his drink was drugged. See also August 2016 Board hearing transcript. Initially, various VA treatment reflects reflect currently diagnosed PTSD and depression. An April 2011 VA treatment record diagnosed PTSD and a May 2011 VA examination report reflects diagnosed depression. Next, after review of the lay and medical evidence, the Board finds that the evidence is at least in equipoise on the question of whether a personal assault (MST) occurred during service. The June 2006 statement reflects that the Veteran wrote that he was sexually assaulted in service after his drink was drugged. During the August 2016 Board hearing, the Veteran testified to being subjected to sexual trauma after his drink was drugged. The Veteran also testified to reporting the MST after service. Military personnel records, unit history reports, and service treatment records do not, in and of themselves, verify the Veteran’s account of MST. Subsequently, a November 2010 VA treatment record reflects the VA examiner diagnosed PTSD as due to MST. In addition, an August 2018 VA physician assessed that the evidence of record indicated that in-service MST had occurred. Although service treatment and/or personnel records do not specifically reflect the in-service sexual assault, the reported MST and subsequent lay statements indicate that an in-service personal assault occurred. Additionally, the November 2010 VA examiner and August 2018 VA physician each assessed PTSD was due to in-service MST. Based upon this evidence, and resolving reasonable doubt in the Veteran’s favor, the personal assault stressor is confirmed. Next, the Board finds that the PTSD stressor is adequate to support a diagnosis of PTSD, and that the evidence is at least in equipoise on the question of whether the PTSD symptoms are related to the recognized stressor. In August 2018, the Board obtained a VHA medical opinion. The August 2018 VA physician opined that the reported MST contributed to the Veteran’s current psychiatric disorder, to include PTSD. The August 2018 VA physician specifically assessed that the evidence of record indicated that in-service MST had occurred. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection an acquired physiatric disorder of PTSD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Finally, as indicated above, the record that the diagnosis also included depression, but the record does not reflect that any psychiatric symptoms have been, or are capable of being, differentiated from the PTSD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that the Board is precluded from differentiating between the symptomatology attributable to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so); see also 38 C.F.R. § 4.14 (pyramiding, that is the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability). As such, the Board has attributed all symptoms shown in this case to the service-connected PTSD, which is not prejudicial to the Veteran because all psychiatric symptoms will be rated pursuant to the General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130. REASONS FOR REMAND TDIU The Board’s instant decision grants service connection for an acquired psychiatric disorder. In implementing the Board’s grant, the Agency of Original Jurisdiction (AOJ) will assign an initial disability rating for the acquired psychiatric disorder of PTSD from the date of claim for service connection; thus, the issue of a TDIU is inextricably intertwined with implementing the grant of service connection for PTSD and the assignment of an initial disability rating. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The Veteran’s employment history is unclear from the record. In a March 2013 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported that the inability to work was due to a non-service-connected stroke. The Veteran also reported last working in 2007. The Veteran did not complete the entire May 2013 VA Form 21-8940. Based on the above, the Board finds it necessary to clarify the Veteran’s self-reports of employment. On remand, the AOJ should give the Veteran the opportunity to provide an updated and accurate VA Form 21-8940 detailing the complete work and education history, income earned, to include highest gross earnings per month, and any other information regarding employment or attempts to obtain employment. Failure to complete and return the requested TDIU claim form will result in abandonment of the claim per 38 C.F.R. § 3.158. The matter is REMANDED for the following action: 1. Request that the Veteran file an updated Application for Increased Compensation Based on Unemployability (VA Form 21-8940) detailing his complete work history and income information, including self-employment and any other information regarding full-time or part-time employment or attempts to obtain employment. The Veteran is advised to complete the entire form. In the event that the TDIU claim form is not fully completed and returned, the question of abandonment of the TDIU issue will be adjudicated. See 38 C.F.R. § 3.158. (Continued on the next page)   2. After implementing the Board’s grant of service connection for PTSD and the assignment of an initial disability rating, readjudicate the issue of a TDIU. If the benefits sought on appeal are not granted, the Veteran and representative should be provided with a Supplemental Statement of the Case. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel