Citation Nr: 1805115 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-07 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). 2. Entitlement to total disability based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Alexandra M. Jackson, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rachel Mamis, Associate Counsel INTRODUCTION The Veteran had active naval service from May 1981 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal of April 2013 and June 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. This matter was previously before the Board, most recently in July 2016, at which time the Board remanded the issues currently on appeal for additional development. The case has now been returned to the Board for further appellate action. The Board acknowledges the Veteran's request for a hearing with respect to his claim for entitlement to service connection for an acquired psychiatric disability. In light of the finding below, the Board finds the Veteran is not prejudiced by the denial of the Veteran's request. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran has an acquired psychiatric disability that was incurred in or caused by active service. CONCLUSION OF LAW An acquired psychiatric disability, to include PTSD and MDD, was incurred in active service. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he has psychiatric disabilities due to active service; namely, PTSD and depression. More specifically, the Veteran asserts that his PTSD stems from several near fatal accidents during his naval service, as well as an in-service personal assault. The Veteran's service treatment records (STRs) are generally silent for reports of treatment, symptoms or diagnosis of any mental health disability while in active service. On an October 1984 report of medical history, the Veteran denied frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort. On the Veteran's October 1985 report of medical examination, the examiner noted there were no psychiatric abnormalities. On the Veteran's May 1985 separation report of medical history, the Veteran continued to deny frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort. The Board notes that these examinations were all conducted subsequent to the stressors to which he attributed his PTSD. The Board acknowledges the Veteran's documented in-service substance abuse and treatment. The Veteran was afforded a VA examination in May 2014. At the time of the examination, the Veteran reported low energy, insecurity, low self-esteem and suicidal ideation. The examiner diagnosed multiple psychiatric conditions, including major depressive disorder, in partial remission with substance abuse disorders secondary to his major depressive disorder. The examiner noted the Veteran's stressors, and documented that the Veteran did not meet the criteria for a diagnosis of PTSD; however, he did meet the criteria for a diagnosis of MDD. In a July 2014 hearing, the Veteran reported that on more than one occasion in service, he feared for his life. He noted for instance, that on one occasion, an aircraft carrier known as the Kitty Hawk collided with a Soviet submarine. The USS Mauna Kea, on which the Veteran served was tasked with escorting the submarine back to Russia through hostile territory. The Board notes that in a May 2016 memorandum, the Joint Services Records Research Center (JSRRC) confirmed that the Kitty Hawk was struck by a Soviet submarine, per the Veteran's report. He further reported that he finally sought treatment following service, when he first obtained insurance; but that prior to treatment he self-medicated in order to deal with the mental health symptoms. He elaborated that he had sought treatment while in service for substance abuse; and, was advised not to report his treatment to his supervisors, or he would likely be discharged. He added that additional medical problems since discharge compounded his mental health disabilities, to the point where he made three suicide attempts. The Board acknowledges the March 2015 private letter opinion from Dr. J.N, a psychiatrist. Dr. J.N. reviewed the Veteran's psychiatric history during service, and since discharge. At the time, the Veteran relayed a consistent history of in-service physical assault, as well as instances where the Veteran feared for his life. Dr. J.N. diagnosed the Veteran with PTSD; and, opined that it was as least as likely as not that the Veteran's PTSD was caused by his military service. The Board notes that Dr. J.N.'s opinion was based on a review of the Veteran's claims file, as well as an interview with the Veteran. As such, Dr. J.N.'s opinion constitutes probative evidence in favor of the Veteran's claim for service connection. In a subsequent September 2016 VA examination addendum opinion, the VA examiner opined that the Veteran's MDD was not as least as likely incurred in or caused by the Veteran's reported stressors. The VA examiner continued to attribute the Veteran's MDD to his other chronic medical problems, including his chronic back pain, and sciatica. However, the VA examiner confirmed the Veteran's reported stressor regarding traveling through hostile waters constituted sufficient fear of hostile activity and therefore, supported the diagnosis of PTSD, in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM), Fifth Edition. He noted the Veteran's PTSD was a progression from the Veteran's previously diagnosed MDD. He also indicated that at least three of the Veteran's reported stressors contributed to the Veteran's PTSD, which included a personal physical assault and two near death experiences. The Board notes that the Veteran is generally competent to report incidents which occurred while onboard a Navy vessel, as well as when he first experienced symptoms of depression. However, once evidence is determined to be competent, the Board must determine whether that evidence is also credible. Competency is a legal concept determining whether testimony may be heard and considered, and credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran's statements to be credible in light of the evidence, which supports the Veteran's statements. See generally, Caluza v. Brown, 7 Vet. App. 498 (1995) (finding that in weighing credibility the VA may consider internal inconsistency, facial plausibility and consistency with other evidence of record). Briefly, to the extent his statements have been able to be verified, they are consistent with the evidence of record, including the JSRRC Memorandum and the Veteran's military personnel records (MPRs) which confirm that the Veteran served aboard the USS Mauna Kea (AE-22) during the relevant period. In addition, when reporting his stressors, the Veteran's reports have been internally consistent, to both examining and treating providers, as well as before the Board. In light of the Veteran's competent and credible reports concerning the onset of his mental health problems, and the adequate medical opinions of record, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for an acquired psychiatric disability, to include PTSD and MDD is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). This finding does not suggest that all of the Veteran's problems are associated with this issue in service. In this regard, the nature and extent of the disability is not before the Board at this time. ORDER Entitlement to service connection for an acquired psychiatric disability is granted. REMAND The Board finds that additional development is required before the remaining issue on appeal is decided. Entitlement to TDIU The Board finds that the Veteran's claim for TDIU is inextricably intertwined with the Board's grant of service connection for an acquired psychiatric disability herein which has not yet been rated by the RO. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, current treatment records should be identified and obtained before a decision is made with regard to the remaining issues on appeal. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records not already of record in the claims file. 2. Conduct the appropriate development to adjudicate the claim of entitlement to TDIU, to include providing any necessary VA examinations. 3. Confirm that the VA examination report comports with this remand and undertake any other development found to be warranted. 4. Then, readjudicate the issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow for appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs