Citation Nr: 21025099 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-22 894 DATE: April 27, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as other specified trauma and stressor disorder with anxiety and major depressive disorder (MDD), is granted. REMANDED Entitlement to service connection for unspecified respiratory disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s acquired psychiatric disorder is related to the verbal and physical harassment she experienced in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder, diagnosed as other specified trauma and stressor disorder with anxiety and MDD, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to January 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, denied service connection for unspecified respiratory condition, PTSD with anxiety, and TDIU. In August 2013 the Veteran filed a notice of disagreement (NOD) and in March 2017 the RO issued a statement of the case (SOC). In April 2017 the Veteran filed a substantive appeal (via VA Form 9). In April 2021, the Veteran testified during a virtual hearing before the undersigned Veterans Law Judge. The hearing transcript is not currently associated with the record. However, as the instant decision grants the benefit sought in full or remands the issues for additional development that will not be affected by the hearing testimony, there is no prejudice to the Veteran by proceeding without the hearing transcript. As a final preliminary matter, in Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), the Court held that a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. Although the Veteran originally filed a claim for service connection for PTSD, the Board will broaden the Veteran’s claim and consider all psychiatric diagnoses raised by the record. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military 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 incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. 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 of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Acquired psychiatric disorder, diagnosed as other specified trauma and stressor disorder with anxiety and MDD A July 2013 private treatment note indicates that the Veteran is diagnosed with PTSD with insomnia and MDD without psychotic features. Also, a July 2016 VA examiner diagnosed the Veteran with other specified trauma and stressor disorder with anxiety. Thus, a current disability has been demonstrated. The Veteran contends she is entitled to service connection for an acquired psychiatric disorder due to the verbal and physical harassment she experienced in service. In an August 2014 letter, the Veteran stated that she experienced repeated racial discrimination and harassment, which included discriminatory remarks about her personhood. In one instance, a male soldier pinned her up against a wall and yelled derogatory names at her. The Veteran’s military personnel records indicate that she had disciplinary issues while in service. She was noted as failing to go to her place of duty at the time prescribed on three separate occasions. In July and December 2013 letters, the Veteran’s private psychologist, R.H., recounted the Veteran’s military history as it was reported to him. The private psychologist stated that the Veteran endured jokes, sexual harassment, demeaning commentary, and the threat of potential physical abuse. On the September 2014 disability benefits questionnaire (DBQ) the Veteran’s private psychologist noted that the she experienced symptoms such as difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances (including work or a work like setting), impaired impulse control, recurrent distressing dreams, physiological reactivity, restricted range of affection, hypervigilance, difficulty concentrating, and other symptoms. As a lay person, the Veteran is competent to provide evidence of observable events and report the onset of psychiatric symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Veteran's statements are competent, credible, and consistent with the evidence of record. Thus, the in-service injury requirement has been met. The remaining question is whether the Veteran's diagnosed psychiatric disorders are related to the assault and harassment she experienced while in service. In a December 2013 letter, the Veteran’s private psychologist opined that the prejudicial treatment she experienced in service was directly responsible for her psychiatric disorders. The psychologist explained that the context of racial discrimination surrounding her period of service supports her claim. The psychologist came to this conclusion after observation, testing, an interview, and a review of the Veteran’s records. While the psychologist relied on the service history provided by the Veteran, the discounting of a medical opinion that relied on service history provided by the Veteran is only warranted in certain circumstances, none of which are present here. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006) (reliance on the service history provided by the veteran only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran). The Veteran’s private psychologist concluded that the nature of the Veteran's military service and events that occurred therein and subsequent symptoms made it likely that they caused her psychiatric conditions. Thus, reading the opinion as a whole and in the context of the evidence of record, this opinion is afforded significant probative weight. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). A July 2016 VA psychologist opined that the Veteran's psychiatric disabilities were less likely than not due to or the result of an in-service event. The VA psychologist based his opinion on a lack of mental health treatment or behavioral markers in the Veteran’s service treatment records (STRs), or mental health treatment for many years after service, without taking account of the Veteran’s competent lay statements. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). The July 2016 VA opinion is therefore inadequate and afforded no probative value. In an April 2021 letter, the Veteran’s private psychologist, C.H., opined that the Veteran’s PTSD is more likely than not caused by her military service. Although there is nothing in the Veteran's STRs that specifically document an assault or mistreatment during her active service, cases involving allegations of personal assault fall within the category of situations in which it is not unusual for there to be an absence of service records documenting the events about which a veteran complains. See Patton v. West, 12 Vet. App. 272, 281 (1999). The Veteran has consistently maintained that she suffered an assault and racial discrimination while in service. Moreover, there is no stressor corroboration requirement with regard to claims for service connection for psychiatric disorders other than PTSD. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's acquired psychiatric disorder, diagnosed as other specified trauma and stressor disorder with anxiety and MDD, is related to an assault and racial discrimination she faced in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for an acquired psychiatric disorder, diagnosed as other specified trauma and stressor disorder with anxiety and MDD, is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Although the Veteran originally filed a claim 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). In the present case, there is no evidence that there are symptoms of PTSD that are distinguishable from her other psychiatric disorders. Consequently, the Veteran will be compensated for all of her psychiatric symptoms and the Board need not specifically address the issue of entitlement to service connection for PTSD. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (Board erred in failing to discuss or assess the separate effects of claimant’s service-connected and non-service-connected disabilities and whether, standing alone, his service-connected disabilities warranted an award); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when effects of service-connected and non-service-connected disabilities cannot be separated, reasonable doubt requires that the signs and symptoms should be attributed to the service-connected disabilities). REASONS FOR REMAND 1. Entitlement to service connection for unspecified respiratory disability is remanded. On the May 2012 Veterans Application for Compensation and/or Pension (VA Form 21-526) the Veteran stated that she was exposed to chemicals during her tour of duty when stationed in South Carolina which is surrounded by swamp and salt marshes and landfills. The Veteran also contends she was exposed to mustard gas, asbestos, and ionizing radiation and experienced anaphylactic reactions. In an August 2014 letter the Veteran stated that her respiratory conditions started during service. At the July 2015 VA examination the Veteran reported that she had congestion and problems sneezing. The Veteran reported she uses an Albuterol inhaler, antihistamines, and puts eucalyptus oil and/or peppermint oil on a Kleenex. The Veteran stated her fingers started clubbing as far back as the 1980s. A pulmonary function test was ordered but the Veteran did not take the test. The Board notes that the Veteran is competent to report symptoms that she has observed, and which are within the realm of her personal knowledge. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). In Saunders v. Wilkie, 886 F. 3d 1356, 1368 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit held that pain alone resulting in functional impairment is a disability for VA compensation purposes. While the July 2015 VA examiner did not diagnose the Veteran with a respiratory disability, the Veteran’s reports that she requires ongoing treatment indicate that her breathing problems have caused her impairment such that these symptoms could constitute disability under Saunders. Therefore, the Board finds that the July 2015 VA examination is inadequate, because while the VA examiner noted the Veteran's treatment for respiratory problems, she did not provide an opinion whether the current unspecified respiratory disability was related to the Veteran’s military service. Therefore, a new VA examination is required to address the nature and etiology of the Veteran's unspecified respiratory disability. See Barr v. Nicholson, 21 Vet. App. 30 (2007) (holding that once VA undertakes the effort to provide an examination or obtain medical opinion, it must ensure that one is provided or obtained that is adequate for the determination being made). 2. Entitlement to TDIU, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), is remanded. The Veteran contends that her acquired psychiatric disability prevents her from working and that she should be entitled 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 service-connected disabilities, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Currently, the Veteran does not meet the schedular criteria for a TDIU. However, the Board has now granted service connection for an acquired psychiatric disorder, diagnosed as other specified trauma and stressor disorder with anxiety and MDD. The AOJ should therefore consider the issue of entitlement to a TDIU after implementing the Board's grant of service connection for an acquired psychiatric disability. If the Veteran meets the schedular requirements, the AOJ should readjudicate entitlement to a TDIU on this basis. If the Veteran does not meet the schedular criteria, a TDIU may still be granted even if the Veteran does not meet the schedular standards if the criteria of inability to secure and follow substantially gainful employment are met. 38 C.F.R. § 4.16(b). The Board may not grant this benefit in the first instance. Rather, it must remand the case for referral to the 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, 2020 U.S. App. Vet. Claims LEXIS 662 (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?”). In Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the Court held that 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." In the present case, there is sufficient evidence to substantiate a reasonable possibility that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. However, as explained above, pursuant to Bowling v. Principi, 15 Vet. App. 1 (2001), the Board does not have the authority to assign an extraschedular TDIU in the first instance and referral to the Director, Compensation Service, for consideration of entitlement to a TDIU is warranted. The matters are REMANDED for the following action: 1. Request an opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s unspecified respiratory disability and related symptoms. If an examination is required, one should be conducted, to include via telehealth if appropriate. The clinician should indicate whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s unspecified respiratory disability or any related symptoms are due to her military service, had its onset during service, or is otherwise related to service. The clinician is advised that a finding of disability does not require a diagnosis; rather, symptoms causing impairment can constitute disability. The clinician is also advised that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be considered in formulating the requested opinion. After implementing the Board's grant of service connection for an acquired psychiatric disorder, diagnosed as other specified trauma and stressor disorder with anxiety and MDD, determine whether consideration of entitlement to a TDIU on a schedular basis under 38 C.F.R. § 4.16(a) is warranted. If so, after conducting appropriate development, to include providing the Veteran with the formal TDIU application form, VA Form 21-8940, adjudicate this matter. If the Veteran does not meet the schedular standards, refer the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) to the Director of Compensation Service and adjudicate this matter after it is returned. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.