Citation Nr: 1619777 Decision Date: 05/16/16 Archive Date: 05/27/16 DOCKET NO. 15-44 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from December 1982 to September 1986 and from March 1988 to February 1992. He also had service with the National Guard and the Reserves. This appeal arose before the Board of Veterans' Appeals (Board) from a January 2015 rating action of the Louisville, Kentucky, Department of Veterans Affairs (VA), Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, he has an acquired psychiatric disorder (PTSD, depression, and anxiety) that is related to his period of service. CONCLUSION OF LAW The Veteran's acquired psychiatric disorder (PTSD, depression, anxiety) was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310, 4.125 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.3216(a) (2015). Because the Board is granting in full the benefit sought on appeal, any error committed with respect to either the duty to notify or the duty to assist is harmless. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C.A. § 1113(b) (West 2014); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to establish direct service connection for a disability, there must be: (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Additionally, service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125(a); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The Veteran contends that he suffers from PTSD, major depression and anxiety as a direct result of witnessing an assault committed by a fellow soldier upon other soldiers (one being a woman the Veteran was dating at the time), which occurred in May 1989 while he was stationed in Germany. He stated that he had entered a barracks, where there was a party in progress, when one of the female soldiers yelled at him to "look out." The assailant swung the knife towards the Veteran but missed; however, he stabbed two other soldiers. He stated that after the assailant was subdued, he carried the injured female soldier to the hospital. He was covered in her blood and was shaking and trembling. He indicated that he began to suffer from depression and anxiety and was transferred back to the States, where he was placed on anti-depressants (which he says he has taken ever since). In corroboration of this event, the Veteran submitted a November 1989 article from the Stars and Stripes newspaper which recounted this event. These statements are competent evidence as to matters actually observed and within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board also finds the Veteran's statements credible. The Veteran's service treatment records include a normal entrance examination conducted in 1982. His September 1987 entrance examination was likewise within normal limits. At the time of a December 1990 periodic examination, it was noted that his affect was flat. He commented that he was in general good health, although he noted that he had frequent chest pains, nervousness, trouble sleeping and frequent depression (he did not want to move or do anything). He also said that he sometimes felt out of control and had panic attacks. The diagnosis was excessive reaction to stress. A December 20, 1990 treatment note referred to his depressive affect, feelings of worthlessness, anhedonia (an inability to feel pleasure), and insomnia. He indicated that he had been depressed for quite some time. On his January 1992 separation examination, he checked "yes" to frequent trouble sleeping, depression/worry, and nervousness. Despite these complaints, the examination was normal and the diagnosis was history of dysthymia, resolved. He was found fit for discharge. When the Veteran was examined for entrance in to the National Guard in December 2000, he made no mention of psychiatric symptoms and the examination was normal. Private treatment records from August and September 2014 note that the Veteran was seen for a long history of anxiety and depression that he indicated had begun in 1989 (following the stabbing event). The examiner assessed a history of trauma with daily flashbacks and nightmares of the previous traumatic event and diagnosed PTSD. Additional records developed between November 2013 and February 2014, showed diagnoses of PTSD, major depressive disorder, anxiety, and a dysthymic disorder. He had nightmares and flashbacks about the stabbing event, was distrustful of others and was hypervigilant and easily startled. He displayed a bland and empty mood and a constricted affect. His speech was coherent. In October 2014, the Veteran's psychiatrist filled in a VA Form 21-0960P-3, Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (DBQ). It was noted that the Veteran had limited social support, was divorced, and had stressful employment. He only had one diagnosis. He had flashbacks of the 1989 stabbing of his then-girlfriend. The examiner checked that the Veteran had witnessed a traumatic event that had threatened death and that he had responded with fear. He had distressing recollections; recurrent nightmares; feelings that the event is reoccurring; distress at reminders of the event; avoidance of reminders; decreased interest; feelings of detachment; a sense of a foreshortened future; trouble sleeping; and hypervigilance. His symptoms included depression, anxiety, suspiciousness, panic attacks, sleep problems, impaired memory, flattened affect, poor mood and motivation, trouble with relationships, difficulty with stressful occasions, and suicidal ideation. In a November 2014 letter, this psychiatrist indicated that she had seen the Veteran once a month since August 2014. She noted that she had reviewed treatment records developed between 1990 and 1999 that demonstrated his treatment for depression and functional disturbances related to the stabbing event. His symptoms included depression, anxiety and nightmares. His diagnosis was PTSD. She stated that "[b]ased on the information available, his diagnosis of Post Traumatic Stress Disorder is more likely than not related to the traumatic event he experienced while on base in Germany." In November 2014, the Veteran's ex-wife submitted a statement in support of his claim. She stated that they had been married for 12 years and that during their marriage he had nightmares, depression and anxiety. He told her that the nightmares were of a man chasing him with a knife. He then told her about the stabbing incident in service. She said that he would get so depressed that he would stay in bed all day and that he was angry all the time. She recounted times when he had had confrontations with bosses and co-workers. VA examined the Veteran in January 2015. While the examiner noted that the Veteran had a stressor that met the DSM-5 criteria (he witnessed a traumatic event that occurred to others), there was no evidence of a diagnosis of PTSD that conformed to the DSM-5. The examination found that the Veteran was well-groomed and appropriately attentive and cooperative. He responded to stimuli and was lucid and fully oriented. His mood was calm and his affect was appropriate to the situation. His speech was normal and his thought processes were well organized. The examiner then opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The rationale was as follows: [The Veteran] claims that he was present when a female friend (also a service member) was stabbed by another service member at a party and that this resulted in his experiencing mental health problems. Records support that he was not reporting mental health problems prior to this incident and that he did report problems after it occurred. [The Veteran] continued to claim these mental health problems on his separation examination (nervous trouble, depression, and frequent trouble sleeping) in 1992, however the examiner noted "history of dysthymia - resolved" and indicated he was qualified for separation from the service. It is important to note that the examiner at separation .... was the same examiner who documented [the Veteran's] mental health complaints in January and December of 1990. There are no mental health treatment records during his service and [the Veteran] did not receive a mental health diagnosis. His work records were examined for any evidence of impairment, but all were positive. Given the lack of resulting impairment and the examiner's opinion of resolved problems, it would appear that while [the Veteran] experienced some distress - perhaps from witnessing the assault - it was not to the degree of a developed mental disorder. [The Veteran] did not endorse any psychiatric problems when he was examined in 2000 for his entrance into the Air Force Reserves and he was found to be fit for duty. There are no mental health treatment records until [the Veteran] sought service from a non-VA psychiatrist [Dr. C.] in August 2014. Dr. [C] opined a diagnosis of PTSD, however the conclusion of this examination is that [the Veteran] does not meet criteria for mental disorder. Treatment professionals, like Dr. [C], are often limited to the patient's self-report to guide diagnosis and treatment. Additionally, their focus is on symptom alleviation, so diagnoses are used to communicate clusters of symptoms reported by the patient. A forensic evaluation, on the other hand, focuses on the etiology and/or taxonomy of the presenting problem as much as, if not more than, the pathology. Objective data and the subjective self-report from the Veteran are both utilized in an attempt to maximize construct validity, so as to best communicate the nature of the disorder (if one is present) along with the degree of disability. In other words, while the individual's perception of having a disorder may suffice for an examination to guide treatment, it is insufficient for a forensic examination without corroborating objective data. Objective evidence supporting impairment indicative of a mental disorder was not discovered in this examination, therefore No Diagnosis was rendered. Regarding social impairment - [the Veteran] has been married and divorced twice. He stated his first marriage ended because his wife did not want to move back to his home town. He stated that his second marriage ended due to his wife's infidelity. There was no evidence discovered that supported a mental health disorder that interfered with his relationships. Regarding occupational impairment - [the Veteran] received positive reviews from his supervisors while in the service. He began working for the postal service in 1994 and has remained gainfully employed there since that time. There is no significant legal history and no treatment history, aside from a few recent visits with a psychiatrist. In sum, [the Veteran] may perceive that he is experiencing distress indicative of a mental disorder. However, subjective symptoms without objective evidence of impairment does not warrant a mental disorder. No Diagnosis is warranted at this time, as it would be a disservice to improperly diagnose this veteran with a condition that was not well supported by objective data. Since there is No Diagnosis, a negative opinion is rendered regarding a nexus to the military. After a careful review of the evidence, the Board finds that entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression and anxiety is warranted. The record, as noted above, includes evidence of an inservice stressor that would be sufficient to result in the development of PTSD (this was even admitted by the January 2015 VA examiner). The Veteran and his ex-wife have presented credible testimony that ever since his release from service in 1992, he had experienced nightmares about the stabbing incident in service and had suffered from depression and anxiety. While it is true that he did not mention any such symptoms at the time of his 2000 National Guard entrance examination, he indicated that he had not done so because he had wanted to serve. His private psychiatrist, who has been treating him since August 2014, responded to a VA DBQ examination in October 2014, noting all the signs and symptoms consistent with PTSD. She also noted that she had reviewed records from 1990 to 1999 which also showed treatment for these complaints. In a follow-up letter provided in November 2014, she clearly stated that the Veteran suffered from PTSD, depression and anxiety as a direct result of the stressor witnessed in service. This was a well-reasoned opinion that took all of the Veteran's treatment records into consideration. In contrast, the VA examiner, a psychologist, after reviewing the record and examining the Veteran, while noting the sufficient stressor, found that he suffered from no mental health disorder at all. This examination is at odds with the remainder of the evidence of record. As a consequence, the Board affords greater probative weight to the treatment records and the October/November 2014 examination and opinion of the private psychiatrist. See Madden v. Gober, 125 F.3d 1477, 1481 (1997). Therefore, based on the foregoing, service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety is justified. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs