Citation Nr: 21014737 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 10-04 072 DATE: March 15, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) based on military sexual trauma (MST), depression, bipolar disorder, acute stress disorder, affective mood disorder, and schizoaffective disorder is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for degenerative joint disease (DJD) of the lumbosacral spine is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, the Veteran has a diagnosis of PTSD that is linked to her in-service MST. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD due to MST, depression, bipolar disorder, acute stress disorder, affective mood disorder, and schizoaffective disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1976 to March 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2009 and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in February 2017. The Board denied the appeal in a July 2018 decision, which was appealed to the United States Court of Appeals for Veterans Claims (CAVC). CAVC remanded the matter in a January 2020 memorandum decision. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD based on military sexual trauma, depression, bipolar disorder, acute stress disorder, affective mood disorder, and schizoaffective disorder The Veteran contends that she has an acquired psychiatric disorder because of military sexual trauma. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) medical evidence of a link between current symptomatology and the claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f), 4.125(a); see Cohen v. Brown, 10 Vet. App. 128 (1997). However, a claim for PTSD based on alleged personal (or sexual) assault under 38 C.F.R. § 3.304(f)(5) is not to be considered under the more liberal provision of 38 C.F.R. § 3.304(f)(3) which governs claims for service connection for PTSD based on hostile military or terrorist activity. Acevedo v. Shinseki, 25 Vet. App. 286, 289-91 (2012). When PTSD is based on in-service assault, evidence from sources other than the service records may corroborate an account of the stressor incident. Examples of such evidence include but are not limited to records from law enforcement authorities, mental health counseling centers, hospitals or physicians; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). Additionally, evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in the mentioned 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. Id. VA will not deny a PTSD claim that is based on in-service assault without first advising the claimant that evidence from sources other than the Veteran’s service records or that evidence of behavior changes may constitute credible supporting evidence of the stressor, and allowing him/her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. As well, VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that an assault occurred. 38 C.F.R. § 3.304(f)(5). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). First, the medical evidence of record indicates that the Veteran has a current DSM-V diagnosis of PTSD. Specifically, a private medical assessment from Dr. E.Z. diagnosed the Veteran with PTSD based on the DSM-V criteria. As such, the first element of service connection for PTSD has been met. Regarding an in-service event or stressor for her current diagnosis of PTSD, the Veteran reported that in 1976-1978 she was sexually assaulted by a 2nd Lieutenant, became pregnant, and was worried that the child was conceived during the rape. In July 2009 the Veteran reported working in an engine shop with 500 men and 2 women. According to the Veteran, the men did not want her there and “made her life a living hell.” The Veteran asserted that she was “cursed at, shouted at, [and] called everything but a woman.” The Veteran reported that the men would “come up behind [her] and tune [her]rack (twist [her][n. . .])” while she held caustic jet fuel (J-P4). The Veteran reported that she had to decide whether to get burned by spilt jet fuel if she attempted to stop the men or let them get away with assaulting her. A review of the Veteran’s service treatment records (STRs) revealed no abnormalities that were attributed to an acquired psychiatric disorder. Her August 1976 enlistment examination report indicated that the Veteran was normal psychiatrically. On the report of medical history, she endorsed “no” for depression or excessive worry; nervous trouble of any sort; and frequent trouble sleeping. The Veteran declined a separation examination. The Veteran’s service personnel records indicated that the Veteran retrained to another career field, received an unsatisfactory performance evaluation, received warnings regarding counselling memos, performed well during a career development course, but failed the end of course examination. A May 1977 personnel record noted the Veteran’s promotion to Airman E-2, 47th Field Maintenance Squadron. An October 1977 on the job training record noted that the Veteran was showing great progression in her training and received a passing score of 96% on a recent test. A November 1977 personnel record indicated that in October 1977, the Veteran was placed on temporary duty operating the shop break room due to a medical excuse for a back condition. The Veteran was transferred to the shop supply room temporarily because she was allergic to fuel, oil, grease, and solvents, which she encountered during normal duty as a jet engine mechanic. Her supervisor recommended that she retrain to another career field because of her medical profile. The Veteran was removed from training because of her inability to perform the necessary practical tasks. A December 1977 personnel record indicated that the Veteran had completed a career development course with a 94.8 percent average. However, in January 1978, the Veteran received an unsatisfactory score on her end of course examination. She was placed on review training. A February 1978 personnel record indicated that because of a “personality conflict” between the Veteran and her supervisor, TSgt. J. B., a new military personnel official assisted the Veteran with reviewing career development course materials in preparation for retaking the end of course examination. The Veteran was granted approval to retake the end of course examination in March 1978. A February 1978 personnel record indicated that the Veteran reported to her duty section late and left early without authorization. TSgt. J. B. informed the Veteran that she should have informed TSgt. S, or TSgt. J. B. why she was late and that she should have requested permission to leave the section early. The Veteran reportedly informed TSgt. J. B. that she did not want to talk about the incidents and that he could “write her a letter of counselling because counselling letters didn’t mean a [d . . .].” TSgt. J. B. noted that the Veteran “expressed that attitude about counselling many times in the preceding 3 months.” A March 1978 Airman Performance Report indicated that the Veteran performed well, overall. However, the reviewer suggested that the Veteran “be reassigned to a field of endeavor not related to the jet engine field.” It was believed that she “would excel in a career field of less mechanical complexity.” A March 1978 personnel record indicated that the Veteran declined a separation physical examination. She received a pregnancy discharge in March 1978. Overall, the evidence discussed above indicates that there is credible evidence in support of the Veteran’s reports of MST, based on the Veteran’s lay statements and the behavior changes and the deterioration of her work performance noted in her service personnel records. Resolving all reasonable doubt in favor of the Veteran, the Board finds that this evidence is sufficient evidence to corroborate the Veteran’s report of an in-service stressor relating to sexual harassment and MST. As such, the second element of service connection has been met. Turning now to the issue of nexus, or a causal link, between the Veteran’s current PTSD and the in-service stressor, the Board finds that it is at least as likely as not that the Veteran’s current symptomatology is related to her in-service reports of sexual harassment and MST. The Veteran underwent a private psychological evaluation by Dr. E.Z. in December 2020. Dr. E.Z. indicated that the Veteran met the diagnostic criteria for PTSD. After a review of the record and an examination of the Veteran, Dr. E.Z. opined that it was at least as likely as not that the Veteran’s PTSD is due to an in-service stressor that satisfies the criteria under the DSM-IV and 5. Dr. E.Z. stated that over the course of adulthood, the Veteran experienced a number of traumatic events (i.e. incidents of domestic violence and sexual assault). However, Dr. E.Z. noted that the Veteran reported during the evaluation that her symptoms initially began after the MST and while she was still in the Air Force and that this is corroborated by the medical evidence of record. Dr E.Z. concluded that the Veteran first developed clinically significant symptoms of PTSD after the in-service MST, which was then aggravated, but not caused, by post-discharge traumatic experiences. The Board finds the December 2020 medical opinion from Dr. E.Z. to carry significant probative weight. The Board finds Dr. E.Z.’s opinion to be probative because it provided an adequate rationale based on the pertinent evidence of record and an examination of the Veteran. Accordingly, after affording the Veteran the benefit of the doubt, the Board finds that the evidence of record is in favor of service connection for PTSD, and the Veteran’s claim for service connection is granted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for DJD of the lumbosacral spine is remanded. The Veteran seeks entitlement to a disability rating in excess of 20 percent for her service-connected back disability. The Veteran had examinations for her back disability in March 2007, February 2009, and September 2015. Although the March 2007 and February 2009 examiners noted the Veteran’s complaints of flare-ups of increased pain, neither examiner attempted to estimate the functional impact caused by these flares. Although the September 2015 examiner did address the issue, he determined that he was unable to describe the additional loss in terms of range of motion without speculating as there was “inadequate information available”. The Board finds that the March 2007, February 2009, and September 2015 examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The March 2007 and February 2009 examiners did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. Additionally, while the September 2015 examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. Accordingly, remand is required for a new examination for the Veteran’s service-connected back disability that adequately addresses the Veteran’s complaints of flare-ups. 2. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issue of entitlement to a disability rating in excess of 20 percent for DJD of the lumbosacral spine could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected DJD of the lumbosacral spine. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Furthermore, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.