Citation Nr: 21003530 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 20-14 876 DATE: January 21, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for degenerative disc disease of the thoracolumbar spine with dextroscoliosis is granted. Entitlement to service connection for an acquired psychiatric disorder for the purpose of establishing eligibility to treatment under 38 U.S.C. § 1702 is dismissed as moot. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s current PTSD is a result of in-service combat stressors. 2. The evidence is at least evenly balanced as to whether the Veteran’s degenerative disc disease of the thoracolumbar spine with dextroscoliosis is related to a December 1987 period of active duty for training (ACDUTRA). 3. The grant of the award of service connection for PTSD renders the claim of service connection for an acquired psychiatric disorder for the purpose of establishing eligibility for treatment under 38 U.S.C. § 1702 moot. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for degenerative disc disease of the thoracolumbar spine with dextroscoliosis are met.  38 U.S.C. §§ 101, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 3. The appeal as to the issue of service connection for an acquired psychiatric disorder for the purpose of establishing eligibility for treatment under 38 U.S.C. § 1702 is dismissed as moot. 38 U.S.C. § 1702, 1710, 7105(d)(5) (2012); 38 C.F.R. § 17.36, 17.37. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1991 to May 1991 and served in the U.S. Air Force Reserve for approximately 29 years with multiple periods of ACDUTRA and inactive duty for training (INACDUTRA) throughout her military career. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, confirmed and continued the previous denial of the claim of service connection for PTSD, denied the claim of service connection for degenerative disc disease of the thoracolumbar spine with dextroscoliosis, denied entitlement to a TDIU, and denied entitlement to service connection of psychosis for the purpose of establishing eligibility to treatment. The Veteran’s claim of service connection for PTSD was previously denied in a March 2014 rating decision. However, the Veteran submitted a Statement in Support of Claim (VA Form 21-0781) for Service Connection for PTSD in May 2014. This May 2014 statement provided details regarding her deployment during Operation Desert Shield/Storm that the Veteran contended was her in-service stressor. As new and material evidence was received within a year of the March 2014 rating decision denying the claim of service connection for PTSD, the rating decision did not become final, and the claim of service connection for PTSD remained pending. 38 C.F.R. § 3.156(b). The Veteran testified before a Decision Review Officer at the Detroit, Michigan RO in July 2017. A transcript of that hearing is of record. The Veteran testified during a virtual Board hearing in January 2021 before the undersigned Veterans Law Judge.  As the Board is granting the benefits sought in full, a transcript of that hearing is not necessary. Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Veteran status Generally, to qualify for VA benefits, a claimant must be a “Veteran” under the law. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Under 38 U.S.C. § 101(2), a “Veteran” is defined as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” The term “active military, naval, or air service” includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and; (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). For periods of ACDUTRA, service connection may be granted for disability resulting from injuries or diseases incurred or aggravated during such periods. For periods of INACDUTRA, service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, not disability resulting from diseases. 38 U.S.C. § 101(22), (24); McManaway v. West, 13 Vet. App. 60, 67 (1999) (stating that the law “permits service connection for persons on inactive duty (training) only for injuries, not diseases, incurred or aggravated in line of duty”). Thus, in order to establish Veteran status with respect to a period of ACDUTRA or INACDUTRA, and therefore eligibility for service connection, the record must establish that a claimant was disabled or died due to a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA, or that he or she was disabled or died from an injury (or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident) incurred or aggravated in the line of duty during a period of INACDUTRA. Mercado-Martinez, 11 Vet. App. at 419; Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “Veteran” for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24). Entitlement to service connection for PTSD There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally.  Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with applicable criteria; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).  The Veteran’s DD Form 214 reflects that she served in the Desert Shield/Storm area of responsibility while on active duty from January 1991 to May 1991. Her military personnel records indicate that her Air Force Specialty Code was that of nurse anesthetist, and she served as a flight nurse throughout her military career. An October 2013 PTSD VA examination found that the Veteran did not have a mental disorder that conformed with the DSM-IV criteria and did not have symptoms that met the diagnostic criteria for PTSD under the DSM-IV criteria. In a May 2014 Statement in Support of Claim for PTSD (VA Form 21-0781), the Veteran reported that she worked one mission while deployed during Desert Shield/Storm where two patients had head injuries and part of their skulls were removed and implanted in their abdomens. She also indicated that on another mission, there had been a scud missile attack at a site, and she had to put on chemical gear in order to pick up more patients at the site for loading onto the plane. In a March 2020 Disability Benefits Questionnaire (DBQ), a private psychologist diagnosed the Veteran with PTSD according to the DSM-V criteria. The private psychologist noted that the Veteran presented with classic symptomatology related to PTSD. She reported that the Veteran outlined several traumas including the medical transport of injured servicemembers during Desert Shield/Desert Storm, many of whom were seriously injured with traumatic brain injuries and other significant impairments. The Veteran was involved in many of these types of transports in the four to five months she was stationed overseas. Thus, in the private psychologist’s opinion, it was more likely than not that these traumas are the nexus between the Veteran’s current PTSD symptoms and her military experience. For the following reasons, entitlement to service connection for PTSD is warranted. When there is no award signifying combat, a combat determination must be made on a case by case basis. VAOPGCPREC 12-99 (October 18, 1999). A finding that a Veteran engaged in combat with the enemy under 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to Veterans who served in a general “combat area” or “combat zone,” but did not themselves engage in combat with the enemy. Evidence submitted to support a claim that a Veteran engaged in combat may include the Veteran’s own statements and an “almost unlimited” variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). The Court has held that receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). Given the Veteran’s statements regarding missile attacks, which are credible and consistent with the places, types, and circumstances of her service, the evidence is at least evenly balanced as to whether she engaged in combat with the enemy. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that she engaged in combat with the enemy.  38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to any point within a claim and not merely its ultimate disposition); 38 U.S.C. § 1154(b) (specifying application of the benefit of the doubt doctrine for in favor of combat Veterans). As the Veteran engaged in combat with the enemy, her lay testimony alone generally is sufficient to establish the occurrence of her claimed in-service stressors. Thus, the Board must determine whether the Veteran has a current acquired psychiatric disorder that is causally related to these conceded military combat stressors. A March 2020 DBQ from a private psychologist shows the Veteran has a current diagnosis of PTSD. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020). The private psychologist’s March 2020 opinion establishes a link between the Veteran’s PTSD and her in-service combat stressors. Specifically, the private psychologist explained that she interviewed the Veteran, reviewed relevant portions of her claims file, and opined that it was more likely than not there is a nexus between the Veteran’s current PTSD symptoms and her in-service combat stressors. The private psychologist’s March 2020 opinion is based upon an examination of the Veteran, a review of relevant portions of her claims file, consideration of her reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record. Thus, this opinion is adequate and entitled to substantial probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Moreover, it is the only positive nexus opinion in regard to the Veteran’s current PTSD symptoms and her in-service combat stressors. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s current PTSD is a result of in-service combat stressors. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for degenerative disc disease of the thoracolumbar spine with dextroscoliosis As noted previously, for service connection to be granted for any disability resulting from injury or disease incurred during service, it must be shown that the claimed disease or injury was incurred or aggravated during a period of ACDUTRA, or that the Veteran was disabled from an injury incurred or aggravated during a period of INACDUTRA. The Veteran’s military personnel records confirm she performed 34 periods of ACDUTRA between May 14, 1987 and May 13, 1988, although none of them delineate the particular dates of those ACDUTRA periods. However, the Board gives the Veteran the benefit of the doubt and finds that, as will be discussed further below, one of those periods of ACDUTRA was in December 1987. The Veteran contends her back disability occurred during a period of ACDUTRA in 1987, and she testified before a DRO in July 2017 and the undersigned VLJ in January 2021 that she has experienced back pain symptoms since that time. The Board finds her testimony competent and credible. The Veteran also submitted two buddy statements in February 2015 from individuals who flew with her when she worked as a flight nurse. Both individuals confirmed the Veteran collapsed from back spasms during a training mission in December 1987. Both men also confirmed the Veteran continued to suffer from back pain symptoms since December 1987. For the following reasons, entitlement to service connection for degenerative disc disease of the thoracolumbar spine with dextroscoliosis is warranted. An April 2014 VA x-ray confirmed the Veteran’s degenerative disc disease of the thoracolumbar spine with dextroscoliosis. Therefore, the Veteran meets the current disability requirement.     The Veteran’s reports and buddy statements in regard to her back spasms experienced during a December 1987 period of ACDUTRA are credible. Therefore, the Veteran meets the in-service injury or disease requirement. In regard to nexus, the Veteran and individuals she served with are competent to report the Veteran’s continuous back pain symptoms in service and in the years since her December 1987 period of ACDUTRA.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a Veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence).  The Veteran’s and the buddy statements in this regard are therefore competent and credible.  To the extent that the grant of service connection in this case is based primarily on lay evidence, “nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself.”  Id. at 1335.    At this point, the Board could remand the claim for a VA examination or opinion.  However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand for additional development, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)).   For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s degenerative disc disease of the thoracolumbar spine with dextroscoliosis is related to her December 1987 period of ACDUTRA. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for degenerative disc disease of the thoracolumbar spine with dextroscoliosis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for an acquired psychiatric disorder for purposes of establishing eligibility for treatment under 38 U.S.C. § 1702 Given the determination above finding that service connection for PTSD is warranted, the issue of the Veteran’s entitlement to service connection for an acquired psychiatric disorder for purposes of establishing eligibility for VA treatment under 38 U.S.C. § 1702 is moot as the Veteran will be afforded equal or greater access to VA treatment by virtue of her now-established award of service connection for PTSD. 38 U.S.C. § 1710; 38 C.F.R. § 17.36, 17.37(b). Therefore, the appeal as to this specific issue is dismissed as moot. REASONS FOR REMAND Entitlement to a TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Currently, the Veteran is in receipt of service connection for tinnitus, rated 10 percent disabling, skin cancer removal residual scars, rated 30 percent disabling, bilateral lower extremities unstable scars, rated 30 percent disabling, and noncompensable multiple scars. The Veteran’s combined disability rating is 60 percent from December 18, 2012, and none of the exceptions in 38 C.F.R. § 4.16 (a)(1)-(5) (disabilities of extremities, common etiology, single body system, incurred in action, or prisoner of war) are for application. Thus, the Veteran does not meet the schedular criteria in 38 C.F.R. § 4.16(a). However, the instant service connection grants of PTSD and degenerative disc disease of the thoracolumbar spine with dextroscoliosis may render the Veteran eligible for TDIU under 38 C.F.R. § 4.16(a). Even where a Veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), VA must consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted.”  Bowling v. Principi, 15 Vet. App. 1, 10 (2001).  Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) (“The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105.  Frankly, Bowling appears to be wrongly decided”), the Court recently declined to address whether it should be overruled.  See Stafford v. Wilkie, No. 18-4520 (Vet. App. Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op. at 2 (Greenberg, J., dissenting) (“What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?”). The initial extraschedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities.” Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The medical and lay evidence reflect that there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of her service-connected disabilities. Consequently, if, after implementing the Board’s decision the Veteran does not meet the schedular criteria under 38 C.F.R. § 4.16(a), the issue of entitlement to a TDIU should be referred to the Director of Compensation for consideration under 38 C.F.R. § 4.16(b). Accordingly, the claim for a TDIU is inextricably intertwined with the yet to be assigned initial disability ratings for PTSD and degenerative disc disease of the thoracolumbar spine with dextroscoliosis, and a remand is warranted. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). Accordingly, the matter is REMANDED for the following action: After implementing the Board’s decision, develop and readjudicate the issue of entitlement to a TDIU, to include if appropriate sending the Veteran another formal TDIU application form (VA Form 21-8940). If, after implementing the Board’s decision, the Veteran does not meet the schedular criteria, refer the issue of entitlement to TDIU to the Director of Compensation Service for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.