Citation Nr: 19123741 Decision Date: 04/02/19 Archive Date: 03/29/19 DOCKET NO. 15-20 698 DATE: April 2, 2019 ORDER Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for tachycardia (claimed as heart palpitations) is denied. REMANDED Entitlement to a total disability rating based on individual employability (TDIU) is remanded. FINDINGS OF FACT 1. There is at least an approximate balance of positive and negative evidence regarding whether the Veteran has a psychiatric disability, to include PTSD that is a result of her military service. 2. The Veteran’s tachycardia (claimed as heart palpitations) disability is not related to an in-service injury, disease, or event. CONCLUSIONS OF LAW 1. The Veteran’s acquired psychiatric disability, to include PTSD, was incurred during her military service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.310 (2017). 2. A tachycardia (claimed as heart palpitations) disability was not incurred in active military service. 38 U.S.C. §§ 1101, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1988 to January 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Notably, the September 2013 rating decision denied service connection for PTSD and also denied service connection for major depression, anxiety disorder, panic disorder with agoraphobia. However, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). As a result, in conjunction with Clemons and as addressed below, the claim has been characterized as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. In her substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge. She subsequently withdrew her hearing request in lieu of a February 2019 statement. Thus, the hearing request is considered to be withdrawn. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include psychosis may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. §1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as psychosis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Acquired Psychiatric Disability to Include PTSD Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (1); see also, 38 U.S.C. § 1154(b). Similarly, if a stressor claimed by a veteran is related to the Veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (3). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not “engage in combat with the enemy,” or the claimed stressor is unrelated to combat, the Veteran’s lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran’s testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM V). 38 C.F.R. § 4.130 (2016). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit. The Board notes that this claim was not certified to the Board until August 2015. Accordingly, this claim was pending before the agency of original jurisdiction on August 4, 2014, and DSM-5 applies to this claim. 79 Fed. Reg. 45094 (Aug. 4, 2014). Notably, the Veteran asserts that her PTSD is in part due to being sexually assaulted. The Veteran has been diagnosed as having PTSD related to military sexual trauma (MST). Cases involving allegations of a personal assault fall within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran complains. See, e.g., Patton v. West, 12 Vet. App. 272, 281 (1999). As noted under Paragraph 5.14(d), Part III, of VA’s Adjudication Procedure Manual, M21-1, 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. Id. Service records may not contain evidence of personal assault, and alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault. See YR v. West, 11 Vet. App. 393, 399 (1998). The Manual also notes that since personal assault, to include sexual assault, can be an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, making it difficult to obtain direct evidence, and requiring that the alternative evidence be sought. Id. Under § 3.304(f)(3), 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. 38 C.F.R. § 3.304(f) (3) (2017). [Parenthetically, the Board notes that the provisions of 38 C.F.R. § 3.304(f)(3) mirror those provisions of VA’s Adjudication Procedural Manual, M21-1, Part III, 5.14(d) regarding substantiating personal assault claims. The M21-1 Part III, 5.14(d) lists the same alternative sources of evidence as are listed at 38 C.F.R. § 3.304(f)(3).] In addition, under 38 C.F.R. § 3.304(f) (3), VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran’s service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. Factual Background and Analysis The Veteran contends that she has an acquired psychiatric disorder to include PTSD as a result of MST. She claims that her psychiatric symptoms began in service as she was repeatedly sexually harassed by male soldiers in her group as she was the only female. She also reported an incident during her time in the Persian Gulf when a vehicle broke down at night and she was left alone with harassing soldiers. Her fear was that she would have to use her weapon against one of the harassing soldiers. She indicated that sexual harassment remained a constant threat throughout her military career. A May 2012 VA treatment report indicated that the Veteran had a positive PTSD screen for MST. A July 2012 VA treatment report noted that the Veteran had been attending MST therapy along with her husband. The diagnosis was recurrent major depressive disorder, panic disorder with agoraphobia, and anxiety disorder. In a November 2012 correspondence, a private physician noted that the Veteran had been a patient at the Greenville, South Carolina VA Mental Health Clinic since March 2011. It was noted that in September 2012 the Veteran disclosed having experienced MST. Her diagnoses included PTSD as a result of MST, panic disorder with agoraphobia and major depressive disorder. The physician noted that during her service the Veteran witnessed death and destruction but was not directly engaged in combat. The Veteran also experienced sexual trauma. The physician indicated that the Veteran suffered symptoms of agoraphobia, severe anxiety, hyperarousal, hypervigilance, tremors, recurrent panic attacks and recurrent intrusive recollections of traumatic experiences as a child and while in the military. The Veteran underwent a VA examination in August 2013. The examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD under DSM-IV. The Veteran instead had depressive disorder not otherwise specified (NOS) and anxiety disorder NOS with periods of panic. The examiner found that the Veteran did not have exposure to a traumatic event and the traumatic event was not consistently reexperienced. The examiner noted that in the service the Veteran denied being raped, harmed or touched inappropriately but instead was reporting being sexually harassed by male soldiers as she was the only female mechanic in her unit. The examiner opined that it was less likely than not that the Veteran’s claimed PTSD was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that the Veteran did not report a stressor that met the criteria for PTSD and her symptoms did not emerge until 2006. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for an acquired psychiatric disability, to include PTSD is warranted. The first element of a successful service connection claim is clearly met in this case as treatment reports and examinations reveal diagnoses of PTSD, depressive disorder, panic disorder and generalized anxiety disorder. The Board notes that there is some question as to whether the Veteran has a current diagnosis of PTSD. As noted above, the November 2012 physician found that the Veteran’s diagnoses included PTSD as a result of MST, panic disorder with agoraphobia and major depressive disorder. In contrast, the August 2013 VA examiner indicated that the Veteran did not meet the criteria for PTSD as the Veteran did not have exposure to a traumatic event and the traumatic event was not consistently reexperienced. The examiner further noted that in the service the Veteran denied being raped, harmed or touched inappropriately but instead was reporting being sexually harassed by male soldiers as she was the only female mechanic in her unit. However, as noted above, under § 3.304(f)(3), 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. For these reasons, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran has an acquired psychiatric disorder to include PTSD that had its onset during service or was otherwise related to military service, to include sexual assault. The Board notes again that when the claimed PTSD stressor is physical or sexual assault in service, credible supporting evidence may also consist of a medical opinion, based on review of the evidence that the personal assault occurred. 38 C.F.R. § 3.304(f). In this case, the November 2012 private physician has rendered such a medical opinion, based on review of the evidence, which seemed credible as she discussed the Veteran’s symptoms, history and disabilities. Regarding the Veteran’s acquired psychiatric disorder, to include major depression, anxiety disorder, panic disorder with agoraphobia, the Board again notes that the Court has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, the Veteran has contended that all of her psychiatric symptomatology/impairment is related to her military service and the November 2012 private physician opined that these acquired psychiatric disabilities were a result of the Veteran’s service. Moreover, under the VA rating criteria all psychiatric disabilities other than eating disorders are evaluated under the general rating formula detailed at 38 C.F.R. § 4.130. The Veteran is not seeking service connection for an eating disorder. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Court has interpreted 38 U.S.C. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14. In Esteban, the Court found that the critical element was that none of the symptomatology for any of the conditions was duplicative of or overlapping with the symptomatology of the other conditions. Therefore, the practical effect of this appellate claim is whether all of the Veteran’s current psychiatric impairment is to be recognized as originating from her service-connected disability. Therefore, the Board concludes that the award of service connection for PTSD should include any acquired psychiatric disorder. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran’s claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for an acquired psychiatric disability, to include PTSD, is granted. See 38 U.S.C. § 5107(b). 2. Heart Palpitations The Veteran’s service treatment records are negative for complaints, treatments or diagnoses related to a heart disability or heart palpitations. The Veteran underwent a VA general examination in April 1993. An x-ray of the chest demonstrated no acute cardiopulmonary disease and the examination was negative for diagnoses or complaints related to a heart disability. A July 1996 examination noted that the Veteran had a history of a near syncope with decreasing palpitations. A July 2013 VA treatment record noted complaints of palpitations and a history of sinus infections. The diagnosis was palpitations. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a heart palpitations disability is not warranted. As there is a current heart palpitations disability, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board again notes that the Veteran’s service treatment records are negative for complaints or treatments of a heart or heart palpitations disability and her November 1992 separation examination was also negative for heart diagnoses, complaints or treatments. Further, there is no competent evidence or opinion even suggesting that there exists a medical nexus between a current heart palpitations disability and the Veteran’s service and neither the Veteran nor her representative have presented or identified any such existing medical evidence or opinion. The Board finds that the competent evidence of record, while showing the currently diagnosed heart palpitation disability, does not demonstrate that the Veteran’s heart palpitation disability is related to the Veteran’s service. The Board also notes that the Veteran was not provided with a VA examination and opinion to specifically assess the current nature and etiology of her claimed heart palpitations disability. However, VA need not conduct an examination with respect to the claims on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claims. See 38 C.F.R. § 3.159(c) (4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case as there is no credible evidence that the claimed heart palpitations disability manifested in service and there is also no competent evidence suggesting that this disability was otherwise associated to service. Thus, remand for a VA examination is not necessary. The Board notes the Veteran and her representative’s contentions regarding the etiology of her claimed heart palpitations disability. To the extent that the Veteran and her representative themselves contend that a medical relationship exists between her claimed heart palpitations disability and her service, the Board acknowledges that the Veteran is competent to testify as to her observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that a heart palpitations disability is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran and her representative do not have the medical expertise to provide an opinion regarding the claimed heart palpitations disability etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Thus, the Veteran and her representative’s assertions that there is a relationship between her claimed heart palpitations disability and her service are not sufficient in this instance and are outweighed by other probative evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claim remaining on appeal. In the decision above, the Board has granted service connection for an acquired psychiatric disorder, to include PTSD. Thus, the RO must now assign a rating a rating. Consideration of entitlement to TDIU is dependent upon the rating assigned for the Veteran’s service-connected PTSD. The matter of TDIU is therefore inextricably intertwined with the Veteran’s claim for PTSD. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the issue of TDIU must be remanded. The matter is REMANDED for the following action: 1. Assign a rating for the Veteran’s service-connected acquired psychiatric disorder to include PTSD. 2. Thereafter, readjudicate the issue of entitlement to TDIU. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is remanded to the Board. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs