Citation Nr: 21065424 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-47 219 DATE: October 26, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and schizoaffective disorder, is granted. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, is denied. Entitlement to service connection for headaches is denied. Entitlement to an increased rating in excess of 60 percent for bronchial asthma with chronic obstructive pulmonary disease (COPD), prior to February 4, 2014, is denied. REMANDED Entitlement to a total evaluation pursuant to 38 C.F.R. § 4.29 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence shows that the Veteran's acquired psychiatric disorder is etiologically related to her active service. 2. The Veteran has not been diagnosed with a sleep disorder, to include obstructive sleep apnea, during the pendency of her claim. 3. The preponderance of the evidence shows that the Veteran's headaches are not etiologically related to service. 4. Prior to February 4, 2014, the Veteran's asthma was not productive of any symptomatology warranting a 100 percent disability rating. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). 3. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). 2. Prior to February 4, 2014, the criteria for a rating in excess of 60 percent for asthma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.97, Diagnostic Code (DC) 6604. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1992 to July 1992. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from November 2014, April 2015, and August 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board remanded this appeal for further development. The Board notes that the Veteran's current claim for an acquired psychiatric disorder was originally claimed as a mental health disorder. The Veteran has since been diagnosed with major depressive disorder and schizoaffective disorder. The Board finds it appropriate to characterize these claims broadly as an acquired psychiatric disorder, to include major depressive disorder and schizoaffective disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board also notes that the Veteran submitted an informal claim for benefits on May 28, 2014, which begins the period of appellate review now before the Board, plus consideration of the one-year look back period prior to the filing of that claim, which is May 28, 2013. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Under VA regulations, an informal claim must be followed up with a formal claim filed on the appropriate VA form within one year of the informal claim to preserve the date of claim. 38 C.F.R. § 3.155 (a). The formal claim for an increased rating for asthma and a TDIU was submitted on June 27, 2014, while the service connection claims were received on February 6, 2015, which were within one year of the May 2014 informal claim. While the claim was on appeal, the Veteran was awarded 100 percent disability rating, effective February 4, 2014, for asthma. As this does not represent a full grant of the benefit sought (back to May 28, 2013), the increased rating claim and TDIU claim remain before the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); Hickson v. West, 12 Vet. App. 247, 253 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and schizoaffective disorder, is granted. The Veteran seeks entitlement to service connection for a psychiatric disorder, which she asserts is related to a sexual assault that occurred during her period of service. A psychiatric disorder based on personal assault refers broadly to stressor events involving harm perpetrated by a person who is not considered part of an enemy force. 38 C.F.R. § 3.304 (f)(5). The VA acknowledges the unique problems veterans face in documenting their claims because of the sensitive and extremely personal nature of assault. To compensate for the difficulties in reporting and producing evidence to support the occurrence of a stressor, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. In fact, the absence of in-service reports or treatments cannot be considered "negative evidence" in personal assault cases. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). Unlike in other psychiatric disorder claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor personal assault claims. See Menegassi v. Shinseki, 638 F.3d 1379 (fed. Cir. 2011). If a 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)(5). In cases involving an allegation that is connected to military sexual trauma (MST), the Federal Circuit has held that "the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual assault did not occur." AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013). The evidence of record indicates that the Veteran has been diagnosed with major depressive disorder and schizoaffective disorder during the appeal period. See September 2017 Private Medical Opinion submitted by Dr. H. H. Thus, the requirement for a current disability has been met. The Board finds the Veteran's account of the in-service sexual assault credible. The Veteran has consistently stated throughout the course of the appeal that she has suffered from a psychiatric disorder since her time in service, which is related to an incident with a higher ranking service member at a social gathering during her summer at advanced individual training (AIT). See March 2016 Statement in Support of Claim. She further reiterated these statements to the January 2020 and January 2021 VA examiners. The record confirms that the Veteran was enrolled in AIT beginning in March 1992. Although the Veteran's service treatment records do not document any reported sexual assault allegation, the Board finds the Veteran's reported in-service stressor due to MST is credible. As noted above, the current regulation relating to personal assault reflects VA's judgment that unreported personal assaults occur frequently in the military. The record does not include any contemporaneous corroborating evidence, such as police reports or medical examinations; however, the Veteran explained that she was removed from the training program after seeking assistance following the assault. This is consistent with her military personnel record, which reflects that it was recommended she be removed from service due to an inability to adapt socially and emotionally to military life in late June 1992. The Veteran submitted statements from two friends, dated February 2017 and March 2017, which note that her personality drastically changed following her separation from service. These individuals stated that she became withdrawn, irritable, and anxious. The Board finds the lay statements from the Veteran, including reports to examiners, and the Veteran's friends, are significant competent and credible evidence in support of the Veteran's reported MST event. As such, the Board finds that there is sufficient evidence in the record to establish that the Veteran experienced a personal assault during service In the September 2017 private medical opinion, along with the May 2021 addendum opinion, Dr. H. H. concluded that the Veteran's major depressive disorder and schizoaffective disorder were more likely than not related to her military service. She based this opinion on an interview with the Veteran, her medical history, as well as multiple lay statements submitted by the Veteran's friends, which discussed the changes in her personality and behavior after separation from service. Dr. H. H. further cited to medical literature, which indicated that active duty service resulted in mental health symptoms, which impacted depression, anxiety, and the quality of life. In the May 2021 addendum opinion, she also noted that schizoaffective disorders typically manifest during young adulthood, which aligns with the Veteran's period of enlistment and the incurrence of the in-service stressor. Having reviewed the evidence of record, the Board finds that service connection for an acquired psychiatric disorder is warranted. In this regard, the Board places great probative weight on Dr. H. H.'s opinion that the Veteran's acquired psychiatric disorder is related to her military service. Dr. H. H. clearly reviewed the claims file and summarized pertinent clinical records, so she was fully aware of the extent of the Veteran's claimed disorder. Moreover, she offered clear conclusions with supporting data, as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Consequently, the Board assigns great probative value to Dr. H. H.'s opinion. While the VA examiners of record have raised questions regarding the accuracy of the Veteran's recollection of the date of the in-service assault, the Board finds the lay statements from the Veteran and her friends, and the positive opinion from the private clinician to be credible. Despite the discrepancies regarding the year in which the assault occurred, the Veteran's military record clearly documents her enrollment in AIT between March 1992 and July 1992. Additionally, in the May 2021 addendum opinion, Dr. H.H. noted the Veteran's observed short and long-term memory loss, and explained that any difference in the reported year of the event was immaterial. As such, the Board finds there is sufficient evidence in the record to establish the Veteran experienced a personal assault during service. In general, "after-the-fact medical nexus evidence," such as a VA examiner's finding that a claimant's psychiatric disorder was caused by the alleged in-service stressor, cannot by itself serve as credible supporting evidence of the claimed in-service stressor. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996); Cohen v. Brown, 10 Vet. App. 128, 146-47 (1997). However, there is an exception to this rule in service connection claims based on an alleged personal assault. In such cases, the U.S. Court of Appeals for Veterans Claims (Court) held that the "categorical statements" made in Moreau and Cohen that medical nexus evidence cannot by itself fulfill the requirement of "credible supporting evidence" do not apply. See Patton v. West, 12 Vet. App. 272, 279-280 (1999) (holding that in PTSD cases based on personal assault, a VA examiner's finding that the claimant's PTSD is etiologically linked to the alleged in-service stressor can serve as verification that the stressor occurred); see also 38 C.F.R. § 3.304 (f)(5) (providing that VA may submit any evidence it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred). Accordingly, for personal assault psychiatric claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor. Id.; see also Menegassi v. Shinseki, 638 F.3d 1379, 1383 (Fed. Cir. 2011); Bradford v. Nicholson, 20 Vet. App. 200, 207 (2006). The Board observes that the evidence is at least in equipoise as to whether the Veteran's acquired psychiatric disorder is related to her in-service sexual assault. In this regard, the finding is supported by the credible lay statements submitted by the Veteran regarding this in-service trauma, as well as the September 2017 and May 2021 private opinions in support of her claim. Accordingly, the Board finds that the criteria for service connection for an acquired psychiatric disorder are met. See 38 C.F.R. § 3.304 (f). 2. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, is denied. The Veteran contends that she has a sleep disorder that is related to her military service. Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). In the instant case, the Board notes that post-service treatment records are silent regarding any complaints, diagnoses, or symptomatology related to the claimed condition. Indeed, there is no evidence to support that a current disability exists regarding a sleep disorder. The Board notes that a sleep study performed in April 2012 revealed normal results, with no indication of obstructive sleep apnea. See VA Treatment Record dated April 13, 2012. Thus, the probative evidence of record fails to demonstrate a current diagnosis related to the claimed sleep disorder. Although the Board has also considered the Court's holding in Romanowsky, supra, there is also no probative evidence of a recent diagnosis of this disability prior to the Veteran's claim, nor evidence of functional impairment attributed to such a condition. The Board has considered the Veteran's general allegations that this condition is related to her military service. Notably, she has not reported any symptomatology related to a sleep disorder in support of this appeal. Furthermore, the evidentiary record does not reflect that any symptoms have been attributed to a specific disability, or produced functional impairment. The Board notes that the Veteran is competent to report her own symptoms or matters within her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (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). However, the matter of a medical diagnosis for a disability not capable of lay observation, such as that at issue here, is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Specifically, this diagnosis involves medical subjects concerning internal physical processes extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of specialized testing. In the instant case, there is no suggestion that the Veteran has had any medical training. Therefore, as the Veteran does not have the appropriate medical training and expertise to competently self-diagnose this condition, the lay assertions in this regard have no probative value. Jandreau, supra at 1377 n.4 ("[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Woehlaert, supra. There is also no persuasive evidence that she has symptoms that result in any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Thus, where, as here, the probative evidence indicates that the Veteran does not have a current diagnosis of a sleep disorder for the entire appeal period; there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a sleep disorder. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 3. Entitlement to service connection for headaches is denied. Post-service treatment records indicate that the Veteran has been diagnosed with headaches. See VA Treatment Record dated November 19, 2015. Thus, there is no dispute that the Veteran has been diagnosed to have the claimed disability. However, the Board finds that service connection for this condition is not warranted. The preponderance of the evidence shows that the claimed disability is not related to the Veteran's active duty. Indeed, there is no competent evidence of record indicating that the diagnosed condition is due to any disease or injury from military service. The Board notes that the Veteran has not attributed the headaches to any specific in-service event, injury, or disease. The record does not include probative evidence linking her headaches to service and no evidence has been submitted in support of the claim. Furthermore, the Veteran's lay opinion concerning this matter requiring medical expertise is not competent evidence of the alleged nexus. See Jandreau, supra. As such, the preponderance of the evidence is against entitlement to service connection for headaches. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran's claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As there is no indication in the evidence that the condition is related to service or an associated condition beyond the Veteran's assertion, there is no duty to provide the Veteran with a VA examination. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); see also Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Increased Rating Entitlement to an increased rating in excess of 60 percent for asthma, prior to February 4, 2014, is denied. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is requesting a higher rating for an already established service-connected disability. As such, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). As noted above, the Veteran submitted an informal claim on May 28, 2014, which was followed by a claim for an increased rating on June 27, 2014. Therefore, the appeal period before the Board begins on May 28, 2013, the date VA received the increased rating claim, plus a one-year look-back period. 38 C.F.R. § 3.400 (o)(2); Gaston, supra. As the 100 percent disability rating awarded in the January 2021 rating decision was made effective February 4, 2014, the period between May 28, 2013 and February 4, 2014 remains on appeal and is addressed below. The Veteran's service-connected bronchial asthmas with COPD is evaluated under the provisions of 38 C.F.R. § 4.97, DC 6604, which specifically contemplates the Veteran's diagnosis of COPD. Under DC 6604, a 100 percent rating is assigned for FEV-1 less than 40 percent predicted; FEV-1/FVC less than 40 percent; DLCO (SB) less than 40 percent predicted; maximum exercise capacity less than 15 ml/kg in oxygen consumption; cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension; acute respiratory failure; or outpatient oxygen therapy. 38 C.F.R. § 4.97. Under DC 6602 (for asthma), a 100 percent rating is warranted for FEV-1 less than 40 percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 38 C.F.R. § 4.97. For the period between May 28, 2013 to February 4, 2014, the medical record indicates that the Veteran was treated for her asthma, but it does not indicate she exhibited symptomatology of such a degree as to warrant a higher disability rating. The Board has reviewed the evidence of record dated during the remainder of the one year "look back" period prior to the implementation of the 100 percent disability rating. Based upon such, the Board finds that the Veteran has not manifested respiratory symptoms of the type and extent, frequency, and/or severity as to warrant a 100 percent rating during this period. Indeed, her symptoms have not met or approximated the criteria for a 100 percent rating at any time during the period between May 28, 2013 and February 4, 2014. Therefore, a rating in excess of 60 percent for asthma is not warranted prior to February 4, 2014. REASONS FOR REMAND 1. Entitlement to a temporary total evaluation due to an acquired psychiatric disorder is remanded. The Veteran seek a temporary total evaluation due to hospitalization related to her acquired psychiatric disorder. As the RO will assign an appropriate disability rating on receipt of this decision for the award of service connection for an acquired psychiatric disorder, a remand for reconsideration of the Veteran's claim for entitlement to a temporary (100 percent) total evaluation based on a period of hospitalization is warranted. 2. Entitlement to a TDIU is remanded. As discussed above, a TDIU claim is a claim for an increased rating and the Board will generally review evidence from that date and during the one year "look back period" preceding the submission of the claim. See 38U.S.C. §5110 (b); 38C.F.R. §3.400 (o)(2); Gaston, supra. The appeal period before the Board is from May 28, 2013, the date VA received the informal claim for a TDIU plus the one year look back period. Thus, the issue of entitlement to a TDIU remains on appeal. As such, it is inextricably intertwined with the Board's grant of service connection for an acquired psychiatric disorder and the pending assignment of the corresponding rating percentage by the AOJ. The matters are REMANDED for the following actions: 1. Assign an appropriate disability rating for the now service-connected acquired psychiatric disorder. (Continued on the next page) 2. Then readjudicate the claims for entitlement to a temporary (100 percent) total evaluation based on a period of hospitalization and entitlement to a TDIU. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.