Citation Nr: 21004980 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-12 942 DATE: January 28, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his PTSD is at least as likely as not related to an in-service stressor. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD have been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from February 1971 to June 1971. This matter was initially before the Board in October 2015, where it was remanded for additional development. Specifically, the Board determined that the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorder. The Board also determined that the Veteran’s TDIU claim is inextricably intertwined with his remanded claims. The Veteran’s case returned to the Board in August 2016, where it was remanded again for an additional examination. In September 2019, the Veteran’s case returned to the Board and was remanded for a third time. The Board held that the Veteran should be afforded another examination. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran appeals the denial of service connection for an acquired disorder, to include PTSD. He asserts that he suffered physical and verbal abuse during service, which led to his depression and anxiety. Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish entitlement to service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The Veteran was afforded a VA examination in January 2020. The examiner diagnosed the Veteran with PTSD that conforms to the DSM-5 criteria. The examiner determined that the Veteran has total occupational and social impairment. He opined that it is at least as likely as not that his PTSD is due to “suffering physical assaults while on active duty.” The examiner reasoned that the “patient’s history of physical assault as well as a symptom pattern [is] classic for PTSD.” Regarding credibility and corroboration, the examiner stated the following: The patient presents with a symptom pattern indicative of PTSD. He provides a credible history of traumas sufficient to cause PTSD that is consistent with known instances of physical abuse in military basic training. Whereas the lack of corroboration of this history presents a rating dilemma, it does not disprove the patient’s account, and to formulate a psychiatric diagnosis while purposefully ignoring the history provided by the patient is resorting to speculation. The patient indeed suffers from significant anxiety and depression, but these symptoms are best understood as being manifestations of PTSD. In Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) the U.S. Court of Appeals for the Federal Circuit held that under § 3.304(f)(5), “medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated.” This holding was based, in part, on the final rule for 38 C.F.R. § 3.304(f)(5) which stated that a doctor’s diagnosis of PTSD based on personal assault may constitute competent medical evidence sufficient to corroborate the stressor. 67 Fed. Reg. 10330-31 (Mar. 7, 2002). The Board finds that the Veteran’s diagnosed acquired psychiatric disorders, including PTSD are causally related to a service stressor. In this respect, the Board finds no evidence impeaching the VA staff psychologist interpretation that the Veteran’s account of assault in service is credible which, per Menegassi, is sufficient corroboration. The examiner’s opinion was based on a thorough medical examination and review of the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds the examination and opinion is of high probative value. Conversely, the Board places limited probative value on the February 2016 and December 2016 VA examinations. Regarding the February 2016 examination, the examiner opined that his psychiatric disorder preexisted service, but the Veteran was presumed sound upon entry. Therefore, the examiner applied the incorrect standard without enough evidence to support his conclusion. Regarding the December 2016 examination, the examiner failed to provide sufficient reasoning as to why his psychiatric disorder clearly and unmistakably existed prior to service, despite the fact that the examiner acknowledged that there was no evidence that a psychiatric disorder or mental health problems existed prior to the Veteran’s service. Lastly, the Board acknowledges that while the September 2019 Board remand directives required the examiner to perform the Minnesota Multiphasic Personality Inventory (MMPI) test, remanding the Veteran’s claim to obtain an MMPI test despite a positive nexus opinion, would cause undue delay in the timely resolution of this appeal. With the concerns of delay and considering the uniquely pro-claimant principles underlying the veterans' benefits system, the Board has evaluated the positive evidence of record. See National Organization of Veterans Advocates v. Secretary of Veterans Affairs, 710 F.3d 1328, 1330 (Fed. Cir. 2013). Here, the Veteran has a diagnosis of PTSD that conforms to DSM-5 criteria. Additionally, the January 2020 VA examiner provided a positive nexus opinion, linking his PTSD to service. Based on the analysis discussed above, the Veteran has met the elements to establish service connection. Therefore, his claim for PTSD is granted. REASONS FOR REMAND Entitlement to a TDIU is remanded. In this decision, the Board granted service connection for PTSD. The AOJ has not been afforded the opportunity to assign a disability rating for this now service-connected disability. Currently, the Veteran does not meet the requirements for a schedular TDIU. Therefore, the Board finds that the adjudication of the newly granted service connection claim must be completed prior to the adjudication of the Veteran’s TDIU claim, as the adjudication of the service connection claim will affect the Veteran’s TDIU claim. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Additionally, the Veteran has not submitted a VA Form 21-8940 TDIU application. On remand, a VA form 21-8940 should be obtained that details the Veteran’s post-service educational and employment history. The matters are REMANDED for the following action: 1. Ask the Veteran to complete and submit a VA Form 21-8940 to show a full educational and employment history. 2. Thereafter, readjudicate the issue of entitlement to TDIU. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeleke, Tomi 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.