Citation Nr: 24002013 Decision Date: 01/11/24 Archive Date: 01/11/24 DOCKET NO. 20-25 320 DATE: January 11, 2024 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety and depression, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's acquired psychiatric conditions, to include PTSD, anxiety and depression, are related to military sexual trauma (MST) and other trauma experienced in service. 2. The Veteran's service-connected disabilities have prevented her from obtaining and maintaining employment consistent with her occupational and vocational experience throughout the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety and depression, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.10, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1982 to March 2006. During the Veteran's service she received the following awards and badges: Air Force achievement medal with one oak leaf cluster, Air Force Commendation Medal, Armed Forced Expeditionary Medal, Noncommissioned Officer (NCO) Professional Military Education Ribbon with one oak leaf cluster; National Defense Service Medal with one bronze service star; Air Force Overseas Short Tour Ribbon, Air Force Training Ribbon, Air Force Longevity Service Award with four oak leaf clusters, Air Force Expeditionary Service Ribbon with one oak leaf cluster; Korean Service Medal with one oak leaf cluster; Korean Defense Service Medal; Global War on Terrorism Expeditionary Medal; Global War on Terrorism Service Medal; Air Force Expeditionary Service Ribbon with gold border; Combat Readiness Medal; Air Force Outstanding Unit Award with Valor with six oak left clusters; Air Force Good conduct medal with six oak leaf clusters; and Senior Command and Control Badge. In July 2015, the Veteran initially filed a supplemental claim including "new disabilities" to establish service connection for "PTSD, anxiety, and depression." See July 2015 VA form 21-526b. In determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the decision in Clemons and the diagnoses of record, the Board has expanded the Veteran's claim to include acquired psychiatric disorders and the issue has been recharacterized as stated on the title page. This will provide the most favorable review of the Veteran's claims in keeping with the holding in Clemons. Service Connection 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). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety and depression. The Veteran seeks service connection for her acquired psychiatric disorders, to include PTSD, anxiety and depression, asserting that her acquired psychiatric disorders are related to in-service sexual assault, in-service sexual harassment, and service in active combat zones. In addition to the regulations cited above, 38 C.F.R. § 3.304 (f)(5) provides that if a PTSD 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. First, the Veteran has a current diagnosis of PTSD, major depression, anxiety, and panic attacks in accordance with the DSM-V pursuant to 38 C.F.R. § 3.304(f)(5). See March 2020 compensation and pension (C&P) examination reports and March 2020 CAPRI records. Thus, the first element of Shedden has been met. The Veteran reported experiencing sexual harassment by coworkers in her specialty school almost immediately after entering service. She also described sexual harassment by supervisors during service in Korea as being told women should not be in the military and that her supervisor appeared to go out of his way to find fault in her work or give her the most difficult assignments. Also in Korea, the Veteran was attacked from behind, but she was able to fight off her assailant. She relayed how her male coworkers came to her aid and then followed her everywhere for her protection. Then while at Wright Patterson Air Force Base, she described a civilian employee who would say sexual things to her and eventually assaulted her by shoving her against a desk and kissing her neck. She told a friend who reported the incident and the civilian, "did get in trouble." See March 2020 C&P examination and May 2020 Correspondence. In addition to sexual harassment and assaults, the Veteran experienced combat action with a C-130 crew in from Germany to Bosnia. She described having to deploy equipment from an open bay of the aircraft while under fire, hearing the "pings" of the bullets hit around them. See March 2020 C&P examination and May 2020 Correspondence. The Veteran also experienced frequent warning sirens while on temporary duty in Saudi Arabia. Also, while in Saudi Arabia, the Veteran happened upon the body of a friend who had only moments prior, committed suicide. See May 2020 Correspondence. The Veteran's service records reflect corresponding service in each of these locations as well as the nature of her duties as a ground equipment mechanic and a data manager. See August 2015 Defense Personnel Records Information Retrieval System (DPRIS) response. However, the Veteran's service treatment records (STRs) are silent as to any reports of in-service mental distress or illness and her military records do not include any documented instances that correspond to the Veteran's statements. The Veteran recently reported, "I've been asked why I never said anything while I was on active duty. I was in charge of million-dollar accounts, and I also was in charge of our squadron classified materials we used to fly safely around the world. If I had ever said a word about not sleeping and having anxiety attacks or being depressed, I would have been pulled from my position and my security clearance would have been pulled. I might have been discharged from the military. Prior to the military I would sleep all night long. Never had any problems sleeping. Now I sleep about three hours with medicine, get up, walk through the house, check doors and windows, then go back to sleep. And then sleep almost three hours and repeat. Prior to the military I never had an anxiety attack, nor was I depressed. I had a very happy childhood. My family loved me, we went to church and had family dinners. I had lots of friends and played basketball and softball." See May 2020 Correspondence. The Veteran is competent to report her personal experiences in service. Although the Veteran's service records do not include references to any of these events, they do corroborate the nature, tenure, and locations of her service. There are no records that discredit the Veteran's statements. In addition, the Veteran has reported several of these instances consistently since retiring from service. The Veteran has been treated at a VA medical center (VAMC) for acquired psychiatric disorders and consistently reported experiencing MST since March 2007, eight years before she applied for service connection. See February 2019 CAPRI records. Because the Veteran consistently reported her in-service stressors and sought only treatment for eight years prior to filing a claim for service connection of her acquired psychiatric disorders, the Board find her statements credible and probative. Since there is no negative evidence against finding the Veteran experienced an in-service event or injury, the Board finds by the persuasive weight of the evidence, that the Veteran suffered in-service MST and other traumatic events. Thus, the second element of Shedden has been met. Third, the evidence shows a link between the Veteran's acquired psychiatric disorders, to include PTSD, and her in-service incidents, including MST. The Veteran underwent two C&P examinations for acquired psychiatric disorders, the first in September 2015 and the second in February 2020. See September 2015 and March 2020 C&P examination reports. The September 2015 examiner did not include any nexus opinion; therefore, the Board must look to the March 2020 examination for a nexus opinion sufficient for adjudication purposes. 38 C.F.R. § 3.304(f). The March 2020 VA examiner found a positive nexus between the Veteran's in service stressors including MST and fear of hostile military activity and the Veteran's PTSD diagnosis. The examiner wrote, "the Veteran has consistently referenced these events while in treatment along with her reactions to these events to include feeling more hypervigilant, anxious in crowds and fearful around men at times. It is not possible, without mere speculation, to differentiate which stressor led directly to her development of PTSD symptoms and thus both her experiences of sexual harassment and combat related stressors would be considered to have led to the development of PTSD. See March 2020 C&P examination reports. The Board finds this opinion to be probative on the medical question before it. It is based on accurate facts and its conclusion is supported by the stated underlying reasons. Thus, the third element of Shedden is met. Accordingly, as the most probative opinion links the Veteran's stressors to the Veteran's acquired psychiatric disorders, to include PTSD, anxiety and depression, the Board resolves all doubt in the Veteran's favor and finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.304(f). The appeal is granted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. The Veteran seeks entitlement to a TDIU. She contends she is unable to work due to service connected disabilities. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Although the Veteran filed VA form 21-8940 in July 2015, the Board notes, after reviewing all evidence of record, the Veteran's last day of substantially gainful employment was August 11, 2015. See March 2016 SSA records. Since August 11, 2015, the Veteran has the following disabilities that are service connected: Meniere's Syndrome (rated 30 percent); right carpal tunnel and cubital tunnel syndrome (claimed as right elbow condition) (rated 30 percent); cervical spine degenerative disc disease C4 through C7 with osteoarthropathy (rated 20 percent); status post-surgical repairs left knee with residual osteoarthropathy (also claimed as left leg condition) (rated 10 percent); right knee osteoarthropathy (rated 10 percent); lumbar spine osteoarthropathy (rated 10 percent); recurrent bilateral tinnitus (rated 10 percent); hiatal hernia and gastroesophageal reflux disease (rated 10 percent); status post-operative left carpal tunnel syndrome (rated 10 percent); and additional service connected disabilities that are not compensable. The Board notes that under § 4.16(a)(3), service-connected disabilities that affect a single body system will be considered as one disability. Here, the Veteran's cervical spine, lumbar spine, and left and right knee conditions are all rated under the single orthopedic body system. The combined rating for the single orthopedic body system is 43 percent, which is rounded to the nearest degree divisible by 10, which is 40 percent. The combined rating of all service connected disabilities is 83 percent which is also rounded to the nearest degree divisible by 10, which is 80 percent. See Combined Ratings Table at 38 C.F.R. § 4.25(a). Accordingly, the Veteran has at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. The Veteran completed VA form 21-8940 in July 2015. The Veteran's responses indicated she became too disabled to work in March 2006, immediately upon retirement from the Air Force. However, she also indicated that she worked full-time as a Medical Support Assistant beginning in June 2007 and was still employed in July 2015. The Board notes that the Veteran's SSA records indicate she missed over 120 hours of work due to illness but did not specify when those working hours were missed. See March 2016 SSA records. The Veteran later filed for disability through the Social Security Administration (SSA). These records are more comprehensive and provide additional education and occupational employment history. In her SSA file, the Veteran indicated her last day of employment was August 11, 2015, and that she has not worked since. The Veteran is a high school graduate with three years of college level classes as well as Air Force specialty training in Aviation Resource Manager and Aviation Ground Equipment Mechanic. The Veteran's occupations in the Air Force include aviation ground equipment mechanic from March 1982 to June 1996 and aviation resource and data manager from June 1996 to March 2006. See August 2017 SSA records. There are no other records in the file to indicate the Veteran has worked in any amount or capacity since August 11, 2015. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of several service connected disabilities. The Veteran had several surgeries on her knees prior to retiring from the military and she has fallen on several occasions. Since retiring, the Veteran has had surgery on her neck, hands/wrists, and knees. The Veteran's physical limitations preclude her from sitting, standing, walking, or running for any significant amount of time. The Veteran's left and right arm carpal tunnel conditions require her to wear braces that make it difficult for her to even hold a pen thus necessitating the use of "tubes" provided by occupational therapy. See December 2005 private treatment records; November 2006 private treatment records; December 2006 private treatment records; February 2007 Pope Air Force Base treatment records; March 2007 VA examination; September 2015 STRs; and March 2016 SSA records. Specifically, the Veteran's right carpal tunnel and cubital tunnel syndrome and left carpal tunnel syndrome which cause problems with gripping, handling, carrying, keyboarding, and writing. She reports that her hands will shake if she does any prolonged typing or repetitive manipulation. The Veteran wears braces on both hands/wrists that immobilize her thumbs. In addition, the Veteran's Meniere's Syndrome includes tinnitus and vertigo which causes near constant ringing in her ears as well as intermittent dizziness and loss of balance which has resulted in falls. The Veteran's left and right knee conditions cause the Veteran to walk with a limp, constant pain, inflammation and swelling which reduce her range of motion. The Veteran requires constant use of a either a cane or walker depending on the distance she must travel. The bilateral knee conditions prevent her from being able to walk or stand longer than a few minutes. The Veteran's cervical and lumbar spine conditions cause her to appear stooped over. She suffers from constant neck and back pain. Sitting at desk for prolonged periods causes significant stiffness and spasms. See August 2017 SSA records. The Board has reviewed all the Veteran's available medical records and finds that the Veteran's statements are supported by her service treatment records (STR), VA treatment records, SSA medical file, and private treatment records. See December 2005 private treatment records; November 2006 private treatment records; December 2006 private treatment records; February 2007 Pope Air Force Base treatment records; March 2007 VA examination; September 2015 STRs; September 2015 CAPRI records; January 2016 CAPRI records; May 2016 CAPRI records; August 2017 SSA records; August 2016 CAPRI records; November 2017 Government Facility records; November 2017 CAPRI records; February 2019 CAPRI records; and March 2020 CAPRI records. Given the forgoing, the Veteran's service-connected disabilities preclude her from the ability to secure and follow a substantially gainful occupation consistent with her education, skills, training, and work history. Due to her service connected disabilities of her neck, back, hands, legs, and peripheral nerves, the Veteran can no longer perform the physical duties of either her military service or her post-service job as a medical support assistant and the Veteran does not possess the training or education to pursue alternative job placement. In addition, the SSA records indicate a job search corresponding to the Veteran's skills and abilities was performed and yielded no results. See March 2016 SSA records. Given that the Veteran's ability to reach, handle, grasp, lift, carry, walk, stand, sit, and even turn her neck are limited, the Board finds that the Veteran could not perform any other job that exists. The Board has granted service connection for an acquired psychiatric disability herein (and thus the agency of original jurisdiction (AOJ) has not had an opportunity to provide an initial rating for this condition), the Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of her service connected acquired psychiatric disorders. The Veteran has reported her acquired psychiatric disorders cause her to be irritable and difficult for her to interact with the public. Her immediate past job, as a medical support assistant required her to have regular contact with members of the public. The Veteran was examined for SSA disability status in March 2016. At that time, the examiner determined the Veteran's abilities to interact with the public and respond appropriately to changes in work settings was moderately limited. Although the examiner found the Veteran was able to understand and carryout simple instructions as well as sustain attention for extended periods, they found the Veteran was unable to tolerate co-workers and supervisors more than 1/3 of the time and only tolerated occasional interaction with the public. The examiner found the Veteran's remaining functional capacity is limited to non-public work for the aforementioned reasons. See March 2016 SSA records. Moreover, the Veteran has been consistently treated for acquired psychiatric conditions and has even been hospitalized for suicidal ideation. See December 2018 VAMC report of hospitalization and March 2020 CAPRI records. The Veteran's submitted several handwritten pages describing her difficulty maintaining substantially gainful employment, including, daily anxiety attacks, breaking out in sweat, heart racing, body shaking, crying, and sometimes throwing up; nightmares five out of seven nights that include waking up unable to breathe, kicking and swinging; dreaming of missions; sweating through night clothes due to fear of anxiety or panic attacks. See May 2020 correspondence. Thus, if the Board were to consider the effects of the Veteran's service connected acquired psychiatric conditions, the Veteran is unable to appropriately interact with the public or tolerate co-workers and supervisors as needed to maintain substantially gainful employment. Thus, the Board finds that the Veteran is unemployable, and her service-connected disabilities have rendered her unable to secure or follow substantially gainful employment. See 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (in a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator); see also Gilbert, supra. Accordingly, a TDIU is warranted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Webb, Katherine S. 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.