Citation Nr: 18143362 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-22 847 DATE: October 18, 2018 ORDER Entitlement to service connection for persistent depressive disorder, to include any psychiatric disorder, and claimed as posttraumatic stress disorder (PTSD), is granted. (The issues of whether new and material evidence was received to reopen entitlement to service connection for ischemic heart disease and costochondritis, prostatitis, and bilateral carpal tunnel syndrome, as well as entitlement to service connection for vision loss, bleeding gums, chronic fatigue, memory loss, muscle weakness, chronic fatigue, and entitlement to a total disability rating based on individual unemployability (TDIU) for service-connected disabilities are addressed in a separate decision of the Board.) FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his persistent depressive disorder is at least as likely as not related to service. CONCLUSION OF LAW The criteria to establish service connection for persistent depressive disorder have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, had service from February 1988 to June 1998. In February 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). He also testified at a separate Board hearing before a different VLJ in February 2016 regarding claims not covered by the later hearing. Transcripts of the hearings are associated with the claims file. Thus, while the Veteran appeared at two Board hearings before two different VLJs, the hearings covered separate issues with no overlap and single-judge disposition is appropriate for each appeal. See Arneson v. Shinseki, 24 Vet. App. 379 (2011); 38 C.F.R. § 20.707 (2018) (stating that the VLJ who conducts a hearing shall participate in making the final determination of the claim). The issues covered at the February 2016 hearing are addressed in a separate Board decision by the VLJ who conducted that hearing. A service connection claim for a mental disability may include claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the claimant’s description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As a result, the Board has taken an expansive view of the Veteran’s claim pursuant to Clemons. 1. Entitlement to service connection for depressive disorder, claimed as a psychiatric disorder, to include posttraumatic stress disorder (PTSD). The Veteran contends that he developed a psychiatric disorder as a result of service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997. In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has an inherent fact-finding ability. Id. at 1076. The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The Board concludes that the Veteran has a current diagnosis of persistent depressive disorder that is related to in-service events. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records confirm psychiatric diagnoses for dysthymic disorder and anxiety disorder since at least September 2012. Significantly, during this treatment he described reexperiencing memories of stressors from his service. He indicated he noticed irritability and concentration problems around 2000 when he stopped working for the National Guard. The Board notes that this description as to the onset of symptoms and the stressors in service occurred prior to his filing a claim for benefits. In a June 2014 Statement in Support of Claim for PTSD and October 2015 correspondence, the Veteran reported an in-service event/stressor that involved an accident with a motor pool in Fort Hood, Texas where he observed a soldier give another soldier CPR and every time the victim was given a breath blood would bubble out of his head. The Veteran said he watched as the victim ultimately succumbed to the injuries. In a May 2016 statement, additional in-service stressors were identified. The Veteran reported an incident at Camp Casey, Korea between 1990 and 1991 where he had just left the main gate and saw what appeared to be a young girl’s head stuck between the back tires of a truck while the rest of her body was rubbed off the road. He also stated that he experienced the death of several fellow servicemen. While on a mission, one of his own men shot and killed another soldier and wounded another. While stationed at Fort Carson, Colorado between 1991 and 1992, SPC D. was killed in a hummer rollover while the Veteran was on guard duty. SPC W. was killed on the rail head in Pinyon Canyon when the tank commander turned the turret without proper notification and crushed SPC W.’s head. The Veteran said the tank commander was not removed from duty, but instead became his staff sergeant. While stationed in Camp Pelham, Korea between 1994 and 1995, the Veteran witnessed an American soldier commit suicide on a train track. In October 2015 correspondence and a May 2016 statement, the Veteran reported in-service stressor events involving a personal assault. Specifically, he reported being subjected to mental and physical abuse by his superior officers. While stationed in Fort Hood, Texas the Veteran was punched, slapped, elbowed, clotheslined, and ridiculed by PLT Sergeant We., PLT Sergeant K. and others in his platoon. He said these incidents caused him to live with constant pressure and ridicule. In 1990-91, Sergeant K. yelled at the Veteran, who could not hear him due to a hearing problem, and he was hit in the chest and pushed down in front of his wife and children, and the whole platoon, which was very humiliating to him. He also described an incident at Fort Carson, Colorado in 1991-92 where the Veteran and his wife were denied administrative help for sending her back to Ohio due to pregnancy complications. The Veteran became extremely upset over the administrator’s attitude and caused him to “black out” in anger, although his wife explained that he grabbed the man by the neck and “took him out the window” until several other men came in to break up the raucous. While stationed in Camp Pelham, Korea in 1994-95, the Veteran was “blood-ranked” by his superiors and subordinates, which involved beating the sharp points on the back of one’s rank pin into the flesh. This incident caused the Veteran great pain and bleeding as well as infection. Finally, while stationed in Fort Carson, Colorado in 1997, Sergeant Wi. constantly ridiculed the Veteran in front of the entire platoon. A September 2014 letter from E.B., M.D. reported that he was the Veteran’s former treating psychiatrist and explained he first saw the Veteran in 2013. He indicated the Veteran had been diagnosed with PTSD from trauma he was exposed to while service in the US Army in the 1980s. No further rationale for the diagnosis or opinion was provided. A July 2015 VA examination revealed a current diagnosis for adjustment disorder with mixed anxiety and depressed mood. The examiner opined that this diagnosis was at least as likely as not related to military service experiences as reported by the Veteran. The examiner noted that the Veteran exhibited psychiatric symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. An April 2016 private psychiatric examination (received in May 2016) shows the Veteran has a current diagnosis of persistent depressive disorder (previously known as dysthymic disorder prior to implementation of DSM-5). After reviewing the entire submitted file, conducting an extensive clinical interview, and obtaining an objective psychological test, the private psychologist opined that the Veteran met the DSM-5 criteria for persistent depressive disorder that was at least as likely as not caused by the events that occurred to him as described during the interview and by his hand-written event history while he served in the military. The Veteran testified before the undersigned in February 2017 and elaborated on how these events during service have continued to affect his mental health since then. The Board has considered evidence of record and finds that based on the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all other pertinent medical and lay evidence, establish that the current psychiatric diagnosis is a result of the Veteran’s service. Significantly, the Veteran has competently and credibly and consistently described the onset of his symptoms shortly after leaving the National Guard and described the incidents in service to medical providers prior to filing a claim. The Veteran has three separate providers who all concluded the current condition is related to service. The Board finds the April 2016 private psychological examination opinion highly probative of a positive nexus between the Veteran’s current condition and service because it not only contains a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board notes that the benefit granted herein is service connection for persistent depressive disorder even though the issue on appeal was previously characterized as entitlement to service connection for PTSD, and there are additional diagnoses of anxiety and adjustment disorder of record. The Federal Circuit has stated, “[w]e recognize that bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability,” Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); however, that is not the situation here with regard to the Veteran’s persistent depressive disorder, anxiety, adjustment disorder, and PTSD. See id. (considering the possibility that bipolar disorder and PTSD did not constitute the same disability, but rejecting this argument based on the facts of that case). Here, the evidence does not reflect that the Veteran’s psychiatric symptoms can be separated or clearly attributed to one or another of his psychiatric disorders, and in applying the benefit of the doubt doctrine, they must therefore be attributed to his service-connected persistent depressive disorder. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). Consequently, the Board need not separately address the issues of entitlement to service connection for PTSD, anxiety, and adjustment disorder. In addition, the Board finds that there is no prejudice to the Veteran in not providing further development to attempt confirmation of any stressors related to his diagnosed PTSD because his claim for a psychiatric disorder has been granted in full. Based on the foregoing, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that service connection for persistent depressive disorder is warranted and the claim is granted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Connally, Counsel