Citation Nr: 1803434 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-14 124 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1973 to December 1975. This appeal to the Board of Veterans' Appeals (Board) arose from June 2013 and November 2013 rating decisions. In June 2013, the RO, inter alia, denied service connection for a major depressive disorder. In November 2013, the RO confirmed and continued the previous denial for service connection for major depressive disorder. In December 2013, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2014, and the Veteran filed a substantive appeal (VA Form 9 Appeal to the Board of Veterans' Appeals) in April 2014. In June 2015, the Veteran was scheduled to appear at a Board hearing before a Veterans Law Judge. He failed to appear for said hearing, and has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2017). In December 2016, the Board, inter alia, remanded the service connection claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development of the evidence. After accomplishing further action, the AMC continued to deny the service connection claim on appeal (as reflected in an August 2017 supplemental SOC (SSOC)) and returned that matter to the Board for further consideration. Regarding characterization of the appeal, as noted in the December 2016 remand, the agency of original jurisdiction (AOJ) had characterized the issue on appeal as a petition to reopen the previously denied claim of entitlement to service connection for major depressive disorder. The Veteran was notified of the June 2013 rating decision and his appellate rights by a letter later that month. Significantly, however, in December 2013 (i.e., within the one-year appeal period), the Veteran submitted new and material evidence relevant to his claim for a major depressive disorder, namely an August 2013 treatment summary from his VA psychiatrist. In this regard, if new and material evidence is received during an applicable appellate period following an AOJ decision (one year for a rating decision), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011) (holding that VA must evaluate submissions received during the relevant appeal period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim). In December 2016, the Board found that the newly submitted treatment record constituted as new and material evidence pertinent to the major depressive disorder claim, pursuant to 38 C.F.R. § 3.156 (b), and therefore, was considered as having been filed in connection with the Veteran's pending claim for service connection. See 38 C.F.R. § 3.156 (b) (2017). Additionally, the Board characterized the claim as a de novo claim for service connection and broadened the claim per Clemons v. Shinseki, 23 Vet. App. 1 (2009) due to the various diagnoses of acquired psychiatric disorders of record. See Clemons 23 Vet. App. 1 (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. All records have been reviewed. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Although the Veteran has been diagnosed with PTSD, he did not engage in combat with the enemy, he has not alleged an in-service stressor related to fear or hostile military or terrorist activity, there are no service records or other credible evidence that corroborates the occurrence of the Veteran's alleged in-service stressors, and the record presents no basis for VA to make any further attempt to corroborate the occurrence of any such stressor(s).. 3. Although no psychiatric problems were noted in service, the Veteran has credibly asserted experiencing symptoms of depression during and since service, and competent, probative opinion evidence indicates that there is at least as likely as not a medical relationship between currently diagnosed major depressive disorder and the Veteran's military service CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for acquired psychiatric disability-specifically, major depressive disorder-are met . 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). Given the favorable disposition of the claim for service connection for an acquired psychiatric disability to award service connection for major depressive disorder, the Board finds that all notification and development actions needed to fairly resolve this matter have been accomplished. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 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). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and evaluation of its competency, credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection for PTSD requires a diagnosis of the condition; a link established by medical evidence between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304 (f); see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Diagnoses of PTSD must be made in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM). See 38 C.F.R. § 4.125. The Board notes that the Fifth Edition of the DSM (DSM-5) recently replaced the Fourth Edition (DSM-IV). Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with the DSM-5. The provisions of the interim final rule only apply, however, to all applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014. In this case, the Veteran's claim was certified in November 2014. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Here, the Veteran claims that he has an acquired psychiatric disorder that began during service and has continued since. See Veteran's claim dated in June 2011 and VA examination report dated in April 2016. The Veteran, essentially, asserts three main in-service events that have caused his acquired psychiatric disorder. First, he reports that he witnessed soldiers incur injuries and die while serving as a clerk in advanced infantry training. See VA examination reported dated in April 2016. Second, the Veteran contends that during service, he feared for his safety after he was threatened by another service member and had his personal items stolen from his locker. See statement in support of claim for service connection for PTSD dated in December 2016, and VA examination report dated in June 2016. Third, he alleges that he witnessed another solider beaten and sexually assaulted. Lastly, the Veteran claims that he did not report his mental health symptoms during service in fear that he would be dishonorably discharged; however, following his military discharge he sought mental health treatment, but such treatment records have been destroyed. Id. The Veteran's service records reflect that his military occupational specialty (MOS) was a clerk typist and supply officer at an evacuation hospital. His service treatment records (STRs) include his December 1973 enlistment examination report and an August 1975 separation examination report that document normal psychiatric evaluations. In a November 1985 statement, the Veteran reported that he had been experiencing personal and family problems. He also reported symptoms of sleep impairment, loss of appetite, nervousness, and extreme exhaustion. A March 1991 private medical center discharge summary report reflects a diagnosis of major depression and that the Veteran has multiple stressors, to include family life and his employment. In an August 2013 letter, a VA physician and staff psychiatrist opined that the Veteran's depression began during service and has continued since. The VA physician explained that during the Veteran's military service, he felt homesick, isolated, and became depressed. The Veteran did not report his depression symptoms during service, in fear of dishonorable discharge. Within five to seventh months following his discharge of service, the Veteran sought mental health treatment. The VA physician indicated that since this time, the Veteran has continued seeking mental health treatment. Om March 2016 VA examination, the examiner indicated that the Veteran met the criteria for Axis I diagnoses of PTSD and major depressive disorder. The examiner interviewed the Veteran and reviewed his claims file and opined that the Veteran's PTSD and "psychotic experiences" have been present since his military discharge. The VA examiner indicated that the Veteran reported that he did not report his mental health symptoms during service in fear that he would be dishonorably discharged. During a June 2017 VA examination, the reported that during service, he filed a disciplinary action against a service member who repeatedly called him names and threatened bodily harm. The Veteran stated that he felt intense fear, isolated himself from others, and avoided associating with other soldiers due to his fear. He continuously felt that he was not safe and that he could not defend himself. The examiner indicated that the Veteran met the criteria for Axis I diagnoses of PTSD and major depressive disorder. The examiner opined that the PTSD and major depressive disorder at least as likely had their onset in service or are related to his military service. The examiner reasoned that the Veteran reports that his onset of symptoms began during service and he was threatened by another service member after issuing a disciplinary action, his personal items were stolen, and he witnessed a sexual assault. The examiner indicated that the Veteran's attack on his personality/ job function let to discomfort of his situation and fear of his safety. The examiner stated that the available medical records support a major depressive disorder since service. The examiner noted a March 1991 treatment record notes that the Veteran has multiple stressors which supports the evidence that the Veteran "has a co-existing, underlying mental health condition which precipitated his [major depressive disorder" as he trie[d] to function in a civilian setting." Furthermore, the examiner stated that a review of the Veteran's treatment records is limited; however, his previous treatment provider in August 2013 indicated that the Veteran has continued mental health treatment since her discharge from service. In a June 2018 Memorandum, a formal finding was made that the information required to corroborate the Veteran's stressors was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. First addressing the matter of whether the criteria for service connection for PTSD are met, the Board notes that, although the Veteran has been diagnosed with PTSD pursuant to the DSM 5 criteria, the regulatory requirement of credible evidence that the claimed in-service stressors actually occurred has not been met. Historically, the evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD varied depending upon whether a veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 359 (1998). If VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required-provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, disorders or hardships of service." See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f)(1); see also Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Where a veteran's alleged stressor is not combat related, the veteran's lay testimony, alone, is not sufficient to establish the occurrence of the alleged stressor; rather, corroborating evidence is needed to support the claim for service connection. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). See also Zarycki, 6 Vet. App. at 98; Doran v. Brown, 6 Vet. App. 289, 290 (1994). The Board notes that on July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of in-service stressors involving "fear of hostile military or terrorist activity." See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). In this case, the amended regulatory provisions are inapplicable. The Veteran's current claim is, generally, based on alleged observation of other service members injured or killed and that the Veteran was threaten by another service member. As indicated above, the Veteran's reported in-service events have not been verified or corroborated. See June 2018 Memorandum. In sum, the Veteran did not engage in combat with the enemy, his alleged stressors neither involve alleged combat nor actual fear associated with hostile military or terrorist activity, and there is no credible service or other evidence corroborating the occurrence of any such stressors . Moreover, the record presents no basis for VA to make any further attempt to corroborate the occurrence of any claimed in-service stressor(s). As a fundamental requirement of 38 C.F.R. § 3.304(f) has not been met, on this record, there is no basis to award service connection for PTSD. Notwithstanding the above, however, the Board also finds that, with resolution of all reasonable doubt in the Veteran's favor, service connection for major depressive disorder is warranted. The Veteran has a current, competent diagnoses of depression, major depression, and, most recently, major depressive disorder. See, e.g., VA examination reports dated in March 2016 and June 2017. As for the in-service injury or disease requirement, although the Veteran's service records are devoid of documented complaints or findings of, or treatment for, depression, the Veteran has reported experiencing symptoms of depression during service and continuity of such symptoms since service-matters which he is competent to assert. See, e.g.,. Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds no reason to question the veracity of the Veteran's assertions in this regard. The Veteran also has alleged continuous psychiatric treatment for many years, To this end, a treatment record dated as early as 1985 references the Veteran's reported psychiatric symptoms of sleep impairment, loss of appetite, nervousness, and extreme exhaustion. Furthermore, a March 1991 treatment record notes the Veteran's diagnosed depressive disorder. While these records do not establish that the Veteran has received psychiatric treatment since service, as alleged, they do lend support to his assertions as to experiencing psychiatric symptoms over a long period of time, allegedly, since service. Significantly, moreover, the Veteran's treating VA physician and a VA examiner have agreed that the Veteran's current depression began in, or is related to, service. See, e.g., August 2013 letter from the Veteran's treating VA physician and VA examination reports dated in March 2016 and June 2017. In this case, the Board finds that the VA opinions that the Veteran's depression began during service are s probative, as such opinions were provided with an explanation for the conclusions based on consideration of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning) rationales for the opinion based on an accurate characterization of the evidence of record. Importantly, the June 2017 VA examiner noted the evidence of record, to include the March 1991 treatment record, in which the examiner indicated that the available medical records support a major depressive disorder since service. The Board emphasizes that VA is not free to ignore a medical opinion or pertinent medical findings (see Owens v. Brown, 7 Vet. App. 429, 433 (1995)), or to reject such a medical opinion based on its own medical judgment (see Obert v. Brown, 5 Vet. App. 30 (1993) and Colvin v. Derwinski, 1 Vet. App. 171 (1991)), even if the opinion is based on lay assertions. Notably, the fact that the June 2017 VA opinion, in particular, was largely based on the Veteran's lay assertions as to experiencing symptoms of depression during and since service does not diminish the probative value of the opinion unless the lay statements are deemed not credible. Such is not the case here. Furthermore, while the June 2017 examiner also referenced uncorroborated in-service stressors in expressing his opinion, the fact remains that multiple medical records, to include the June 2017 VA examination report, also indicate an in-service onset of symptoms of depression, which, collectively, support an in-service onset for major depressive disorder, regardless of the precipitating events. Significantly, moreover, these comments and opinions are not directly contradicted by any other medical opinion or evidence of record. While the mental health providers also related the Veteran's PTSD to service, as explained above, awards of service connection for PTSD are governed by specific criteria set forth in 38 C.F.R. § 3.304(f), which, as explained above, are not met. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102; see also 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Given the totality of the competent lay and probative medical evidence of record, and with resolution of all reasonable doubt in the Veteran's favor on certain elements of the claim, the Board finds that the criteria for service connection for an acquired psychiatric disability-specifically, major depressive disorder-are met. (CONTINUED ON NEXT PAGE) ORDER Service connection for an acquired psychiatric disability-specifically, major depressive disorder-is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs