Citation Nr: 18150094 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 12-23 188 DATE: November 14, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) is granted. FINDING OF FACT The Veteran’s PTSD and MDD are related to his in-service stressor events, to include having his unit’s position fired on by the enemy in a variety of contexts while serving in Vietnam. CONCLUSION OF LAW The criteria for service connection for PTSD and MDD are met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1969 to May 1971, including service in the Republic of Vietnam. The Board thanks the Veteran for his service. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision. There is an extensive procedural history associated with the matter, much of which is not necessary to discuss for purposes of this decision. Most recently, this matter was before the Board in June 2017, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. Remand directives in the June 2017 Board decision required the RO to associate any new VA treatment records with the record and to obtain a new VA examination evaluating what psychiatric conditions the Veteran has under the DSM-5 and which, if any, are associated with his time in service. The Board concludes that there was substantial compliance with instructions from the Board’s remands. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for PTSD and MDD The Veteran contends that he has PTSD associated with his time in Vietnam. The Board concludes that the Veteran has a current diagnosis of PTSD and MDD that is related to in-service stressors experienced while serving in Vietnam, to include having his unit fired on in several situations. 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). In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), i.e., a diagnosis conforming to specified diagnostic criteria (currently the DSM-5, previously the DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Service connection for PTSD requires a link, established by medical evidence, between the Veteran’s current symptoms and an in-service stressor. Occurrence of the in-service stressor must be verified by credible supporting evidence unless the stressor falls under a specified exception (i.e., related to combat or fear of hostile military or terrorist activity). 38 C.F.R. § 3.304(f). The Veteran described several incidents and ongoing circumstances during his time in Vietnam that caused him fear, and that continue to cause him distress now. The Veteran described the events consistently throughout the record, to include in statements submitted to the VA in September 2008 and April 2015. First, the Veteran stated that when he first got to Vietnam he was assigned for several months to a unit posted at an “ammo dump.” One night while he was pulling duty in a guard tower, their location received incoming fire from the enemy. He reported feeling terrified during the experience because the structure provided no real protection, and stated that he lay on the floor of the tower and prayed he would make it until morning. Second, the Veteran explained that many soldiers in his unit would use drugs while on duty, and they would then be in dangerous circumstances (to include being on “red alert” or even having the Mike boat come under fire from the enemy) with those soldiers unable to effectively respond to conditions. He reported it made him very afraid he would end up severely injured, and made him feel as though none of the other soldiers had his back. Finally, the Veteran reported that he experienced racial harassment and bullying while deployed and that, in one particular instance, the Veteran went to get help from some fellow black soldiers when two white soldiers tried to start a fight with him and another black soldier. He stated that the situation was broken up before a fight could occur, but that he still feared he could have caused a “race riot” if things had progressed. In a September 2016 decision, the Board directed VA examiners to consider as fact that the Veteran experienced fear of hostile military activity while in service in Vietnam. Further, in its June 2012 Statement of the Case, the RO indicated that the Veteran’s statements regarding his in-service stressor events and his military personnel record were “sufficient to establish occurrence of an in-service stressor, as it is consistent with the places, types, and circumstances of your service.” The Board does not find any reason to disturb these findings based upon the evidence of record. As an initial matter, the Board notes that the Veteran had received a number of VA examinations prior to the most recent one conducted in June 2017. Each of the prior exams was found to be inadequate, for a variety of reasons, in prior Board decisions. Accordingly, they will not be given any weight or further discussed in this decision. In the June 2017 examination, the VA examiner found that the Veteran does not meet the DSM-5 criteria for PTSD, but does meet the criteria for an MDD diagnosis. The Board notes that the examiner found the Veteran’s stressor statement regarding coming under fire at the ammo dump to meet the criteria for a stressor in accordance with DSM-5 requirements. However, while the examiner found that the Veteran did not have symptoms meeting several of the other criteria for PTSD in the examination section, the Board finds that the examiner’s rationale actually compels the opposite conclusion, particularly when considered in context with other medical evidence of record. Specifically in relation to the PTSD criteria, the examiner stated that he did not mark that the Veteran experienced certain symptoms because the examiner considered those symptoms to be more appropriately attributed to the Veteran’s depressive disorder, and that another doctor who had diagnosed the Veteran with PTSD had “misattributed the [Veteran’s] symptoms to trauma exposure.” The Board notes that the above information, on its own, would compel a finding that the evidence is at least in equipoise as to whether the Veteran has a valid PTSD diagnosis in accordance with VA regulations. The June 2017 examiner did not provide a basis for his conclusion that the specific symptoms were not properly attributed to trauma as well as, or instead of, a depressive disorder. Further, the Board has no other basis for concluding the other provider was incorrect or misinformed in making its determination. Additionally, however, the Board notes that prior medical records support attribution to the Veteran’s in-service trauma. For instance, in June 2008 the Veteran reported that he newly started experiencing nightmares about Vietnam after a shooting occurred in his neighborhood. When it occurred again, the Veteran reported that he “immediately ducked” and that the events made it so he was “always on guard.” The counselor indicated that the neighborhood shootings may have “reactivated” or “exacerbated” the “premorbid PTSD” he experienced from his traumas in Vietnam. Accordingly, law requires the Board to find that the Veteran does have a valid PTSD diagnosis. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In relation to MDD, the June 2017 examiner found that the Veteran had a proper diagnosis, but he suggested the condition is not sufficiently related to service. Specifically, the examiner stated that: He does report some distress related to some of the events that occurred in VN but does not consistently report the same event as primary. Across exams and appointments he tends to report several rotating concerns. This is not to question the veracity of those events but rather to point out that no one event appears to be of central importance to his distress. It seems that his current depression encompasses distress related to deployment experiences IN ADDITION TO several other difficulties including health and physical pain. Therefore, while current depression is more likely than not somewhat related to recollections of past deployment experiences, it is also more likely than not related to health concerns and worries about the safety of his current neighborhood (which are not directly related to military service). The Board notes that the examiner appears to have had an incorrect understanding about what level of relationship the Veteran’s in-service traumas must have to his MDD. It is not necessary that the Veteran’s military service be the only difficulty he has experienced in his life. Thus, while the examiner seemed to believe he was writing a negative opinion, the above rationale actually provides an explicit finding that the Veteran’s MDD is directly related to his in-service trauma as one of the “rotating” primary concerns he experiences. Accordingly, the Board concludes that the competent evidence of record reasonably supports the Veteran’s claim, and that service connection for PTSD and MDD is warranted. Additionally, to the extent that the record contains differing psychiatric diagnoses, the Board finds that a full grant of the benefit sought on appeal has been awarded as it is intended to encompass all psychiatric symptomatology of record. See Mittleider v. West, 11 Vet. App. 181 (1998) (holding that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Anderson, Associate Counsel