Citation Nr: 21074087 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-58 930 DATE: December 14, 2021 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial compensable rating for service-connected migraines is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1970 to December 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from the May 2015 and June 2015 rating decisions issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). In September 2021, the Veteran appeared for a hearing before the undersigned Veterans Law Judge (VLJ). The transcript has been associated with the claims file. The issue of entitlement to a TDIU has been raised by the record and has been added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised). 1. Entitlement to service connection for PTSD is remanded. The Veteran seeks service connection for PTSD. The Veteran contends that his PTSD is related to an in-service stressor involving a race-based altercation involving a gun, during which the Veteran feared for his life. See October 2012, November 2012, and April 2016 Statements in Support of Claim; September 2021 Hearing Transcript. The Board finds that remand is necessary for additional development. First, during the September 2021 Board hearing, the Veteran stated he has received VA medical treatment for his PTSD at Northampton VA Medical Center. However, it does not appear that the Veteran's entire VA treatment records have been associated with the claims file. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. Second, the Board notes that the Veteran has not been afforded a VA examination. The VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). Relevant to the Veteran's claim, where the Veteran contends PTSD is related to an in-service personal assault, evidence from corroborating sources other than a veteran's service records may corroborate a veteran's account of the stressor incident, including, in pertinent part, statements from fellow service members. See 38 C.F.R. § 3.304(f)(5). In this case, the record demonstrates the Veteran has a current diagnosis for PTSD. The Veteran asserts that his PTSD is, in part, the result of a race-based altercation that occurred while the Veteran was stationed in Germany. See October 2012, November 2012, and April 2016 Statements in Support of Claim; September 2021 Hearing Transcript. The Veteran provided a November 2015 buddy statement from a fellow service member corroborating the Veteran's reports of racially charged altercations occurring while the Veteran was stationed in Germany. See November 2015 buddy statement. Additionally, the Veteran submitted a November 1970 New York Times article, G.I.'s in Germany: Black Is Bitter, wherein the racial tensions/altercations occurring between black and white soldiers in Germany were confirmed. See September 2021 correspondence. As such, the Board finds that the Veteran's in-service stressor, a personal assault, has been corroborated pursuant to 38 C.F.R. § 3.304(f)(5). In light of the Board's finding of an in-service stressor, a personal assault, the Board finds that remand is necessary to provide the Veteran with a VA examination. In that regard, the evidence demonstrates a current disability, and corroborating and credible evidence that the in-service stressor occurred. As such, the Board finds that the low threshold for providing a VA examination has been met. See McLendon, 20 Vet. App. at 81. Accordingly, a remand is warranted so that the Veteran may be afforded a VA examination to determine the nature and etiology of the Veteran's claim for entitlement to service connection for PTSD. 2. Entitlement to an initial compensable rating for service-connected migraines is remanded. The Veteran is seeking a compensable rating for his service-connected migraines. The Veteran's migraine disorder was last evaluated in May 2015. The mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined simply as a matter of course. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). During the September 2021 Board hearing, the Veteran denied worsening of his migraine symptoms. However, during the same hearing, the Veteran stated that he experiences multiple migraines per month, including migraines that require him to separate himself and "relax." See Board Hearing Transcript, pp. 3-4. As a result, remand is required to afford the Veteran a more contemporaneous examination to determine the current severity of his migraine disorder. 3. Entitlement to a TDIU is remanded. The Veteran seeks entitlement to a TDIU. As indicated above, the issue of entitlement to a TDIU has been raised by the record and has been added to the appeal. During the September 2021 hearing, the Veteran indicated that he stopped working in 2010 due to his headaches and difficulty concentrating. Further, the Veteran stated that his migraines make it difficult to concentrate and complete tasks. The Board, therefore, finds that an inferred claim of entitlement to a TDIU has been raised by the record. See Rice, 22 Vet. App. 447. However, in light of the Board's remand of the issues of service connection for PTSD and the propriety of the disability rating for migraines, the Board finds that the claim of entitlement toa TDIU must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177-78 (2009) (en banc). The matters are REMANDED for the following action: 1. Notify the Veteran of what information or evidence is needed in order to substantiate the claim of entitlement to a TDIU. Invite him to provide any additional information which he believes may be relevant to his TDIU claim. Specifically, the AOJ should advise the Veteran to complete a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Obtain all of the Veteran's VA treatment records, including all records from the Northampton VA Medical Center. 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of his diagnosed PTSD. Provide a copy of this Remand and the record to the examiner for review. Any and all tests and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's PTSD had its onset during service or is otherwise causally or etiologically related to an in-service injury, event, or disease, to include an in-service personal assault. The examiner must specifically address whether the Veteran's PTSD is related to the in-service personal assault, described by the Veteran as race-based incident involving a gun, where the Veteran feared for his life. The examiner is reminded that the Board has determined there is sufficient evidence to corroborate the in-service personal assault. (b.) If the Veteran manifests an acquired psychiatric disorder other than PTSD, the examiner should provide opinion as to whether such disorder(s) had an in service onset or is otherwise causally or etiologically related to an in-service injury, event, or disease, to include an in-service personal assault? The VA examiner must consider the Veteran's lay statements, VA treatment records diagnosing the Veteran with PTSD, the September 2021 hearing transcript, the 2015 buddy statement concerning the in-service race-based altercations, as well as the November 1970 New York Times article, G.I.'s in Germany: Black Is Bitter, wherein the racial tensions/altercations occurring between black and white soldiers in Germany were discussed. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided. 4. Schedule the Veteran for an appropriate VA examination to determine the current severity of all manifestations of the Veteran's migraine headaches, to include the nature and frequency of a migraine attacks. The examiner should consider the Veteran's reported symptoms and noted impairment associated with such disability in the September 2021 hearing transcript and should also comment on the functional impairment resulting from such disability. (continued on the next page) A complete rationale must be provided for all opinions. If for any reason a medical opinion sought cannot be provided, there must be an explanation why that is so (e.g., whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.