Citation Nr: 1802099 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-10 707A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and anxiety disorder. REPRESENTATION Appellant represented by: Barbara B. Harris, Esquire ATTORNEY FOR THE BOARD K. Marenna, Counsel INTRODUCTION The Veteran served on active duty from February 2003 to August 2003 with additional periods of active duty for training (ACDUTRA) from July 1999 to August 1999, January 2000 to August 2000, and July 2002 to December 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the issue on appeal has been recharacterized to include entitlement to service connection for all acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that claims for service connection for psychiatric disorders, to include PTSD, may encompass claims for service connection for all diagnosed psychiatric disorders). The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence favors a finding that the Veteran's depressive disorder and anxiety disorder are attributable to the Veteran's active duty service. CONCLUSION OF LAW The criteria for service connection for depressive disorder and anxiety disorder have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the present case, the Board finds that the Veteran has depressive disorder, not otherwise specified and anxiety disorder, not otherwise specified. Psychiatrist, Dr. W.H., completed a PTSD Disability Benefits Questionnaire in February 2014 indicating Axis I diagnoses of depressive disorder, not otherwise specified and anxiety disorder, not otherwise specified. The Veteran's private treatment records from Dr. W.H. also reflect that he has been diagnosed with depressive disorder and anxiety disorder. Turning to the question of whether there is a nexus, or link, between the current disability and service, the Board finds that the evidence favors a finding that the depressive disorder and anxiety disorder was incurred in service. The Veteran served on active duty in Jordan from February 2003 to August 2003. The Veteran's service treatment records do not note any complaints or treatment relating to depression or anxiety. In an October 27, 2003 psychiatric evaluation report, dated less than three months after the Veteran's discharge from active service, Dr. W.H. found that the Veteran had an Axis I diagnosis of depressive disorder, not otherwise specified and that the psychiatrist needed to rule out a diagnosis of generalized anxiety disorder. The report noted that the Veteran stated he was not the same person as a result of the stress he experienced during a combat tour of duty in Jordan. He reported being moody, tense, and anxious all the time. The Veteran's wife and children encouraged him to seek a psychiatric evaluation and treatment due to a significant change in his mood, personality, and behavior since returning home earlier that year from Jordan. The Veteran reported that when he was deployed to Jordan in February 2003, he began to have difficulty falling asleep and remaining asleep. He became hypervigilant. He began to fear he would be killed and never see his wife and children again. In a statement dated in August 2010, the Veteran's cousin stated that the Veteran had undergone a noticeable personality change and seemed depressed, anxious and anti-social. He became easily agitated. In another statement dated in August 2010, the Veteran's friend stated that the Veteran had always been an outgoing person, and ever since he got back from his deployment he had been a different person. The statement indicates the Veteran stopped doing activities he previously enjoyed, including working on a car and hunting. In an August 2010 statement, the Veteran's wife stated that prior to the Veteran's service overseas, he was an outgoing, even-tempered man. After the overseas service, he came back different. She stated that the Veteran had become increasingly withdrawn and his outlook had changed. He was quiet and depressed. The lay witnesses are competent to report symptoms capable of lay observation, such as observing changes in personality. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the lay statements of record, including the Veteran's statements to Dr. W.H., to be credible. In a May 2014 opinion, psychiatrist, Dr. W.H., stated that he first treated the Veteran during the months that followed his return from Jordan, and "felt very strongly" that the Veteran had a diagnosis of depressive disorder, not otherwise specified and anxiety disorder, not otherwise specified. The psychiatrist stated he had continued to treat the Veteran for these diagnoses since October 2003 up until the present time. During his early visit, the Veteran focused on the emotional pain and stress he felt from his deployment to Jordan. Dr. W.H. stated, "This psychiatrist strongly feels that [the Veteran] was adversely affected emotionally by the events that occurred while he was in Jordan as well as after he returned from Jordan and remained in the Alabama Air National Guard." There are no other opinions of record addressing the etiology of the Veteran's depressive disorder and anxiety disorder. The Board finds the evidence supports a finding that the Veteran's diagnosed depressive disorder and anxiety disorder are related to service. The Veteran was diagnosed with depressive disorder in October 2003, less than three months after his discharge from active duty service in Jordan and at that time Dr. W.H. was also considering whether a diagnosis of generalized anxiety disorder was appropriate. He has been treated continuously for depressive disorder and anxiety disorder by Dr. W.H. since then. The October 2003 and May 2014 opinions from Dr. W.H. indicate the Veteran's depressive disorder and anxiety disorder are related to service. Lay statements from the Veteran's friend and wife indicate his personality changed following his return from service, including that they observed symptoms of depression and anxiety. In addition, there are no negative opinions of record. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for depressive disorder and anxiety disorder have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter, and service connection is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for depressive disorder and anxiety disorder is granted. REMAND With respect to the need for a medical examination and/or opinion, the Board notes that the Veteran has not been provided with a VA psychological examination addressing the etiology of any acquired psychiatric disorder. The October 2003 psychiatric report from Dr. W.H. indicates the Veteran had an Axis I diagnosis of PTSD. The May 2014 opinion from Dr. W.H. reflects that the Veteran has a diagnosis of PTSD, under DSM-IV criteria. In addition, the evidence reflects that the Veteran has also been diagnosed with panic disorder with agoraphobia during the appeal period. See October 2010 VA treatment record. In the May 2014 opinion, Dr. W.H. noted that the Veteran began to fear for his own life while serving in Jordan, in part because he was placed in tents with no designated protected bunkers and no designated plan of action if a mortar should hit. In a May 2014 statement, the Veteran stated he worried about mortars falling at night, as he was required to sleep in a tent. He also reported hearing oral threats to his life from Jordanian soldiers, and stated that one of his bunk mates was poisoned. The May 2014 opinion and evidence from the Veteran indicate the Veteran may have PTSD based on a stressor of fear of hostile military activity; however, the May 2014 opinion does not clearly provide an opinion that the Veteran's PTSD is related to his fear of hostile military or terrorist activity. Where an alleged stressor involves "fear of hostile military or terrorist activity," a Veteran's lay testimony alone may establish the occurrence of the stressor if a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. 38 C.F.R. § 3.304(f)(3). The record shows that the Veteran served in a classified location in Jordan in 2003. It is consistent with the places, types, and circumstances of such service that he would have been in fear of hostile military or terrorist activity. The Board notes that DSM-5 criteria are applicable to appeals certified to the Board after August 4, 2014. 53 Fed. Reg. 14,308 (Mar. 19, 2015). Here, the case was certified to the Board in August 2016. Therefore, the Board finds that the DSM-5 is applicable. Since prior diagnoses of PTSD were provided using DSM-IV criteria, DSM-5 criteria should be used in diagnosing any acquired psychiatric disorder. Under these circumstances, the Board finds that the requirements for obtaining a VA examination and opinion have been satisfied. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Therefore, remand is required to obtain an examination and opinion addressing the etiology of the Veteran's acquired psychiatric disorders, other than depressive disorder and anxiety disorder, including PTSD and panic disorder with agoraphobia. Additionally, the record reflects the Veteran was treated in the VA emergency department in October 2010 for psychiatric symptoms. The record does not contain any other records of VA treatment. To the extent the Veteran has sought further VA treatment for a psychiatric disability, such records would be pertinent to the claim and should be obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file VA treatment records from October 2010 to the present. 2. After associating with the claims file any records obtained in response to item 1, provide the Veteran with an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed acquired psychiatric disorders, other than depressive disorder and anxiety disorder, to include PTSD and panic disorder with agoraphobia. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. (A) The examiner should clearly identify all current chronic acquired psychiatric disabilities, to include PTSD and panic disorder, which have existed since January 2010 under DSM-5 criteria. (B) If PTSD is diagnosed under DSM-5 criteria, then opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's PTSD is related or attributable to any incident of the Veteran's military service, to include stressors involving the fear of in-service hostile military or terrorist activity. (C) If any psychiatric disorders other than PTSD, depressive disorder, or anxiety disorder are diagnosed, to include a panic disorder, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such diagnosis, is related to the Veteran's service. The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § 5109B (2012). ______________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs