Citation Nr: 18155898 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 10-26 162 DATE: December 6, 2018 ORDER Entitlement to service connection for acquired psychiatric disability, to include post-traumatic stress disorder (PTSD) and major depressive disorder as secondary service-connected to right ear hearing loss and tinnitus is granted. FINDING OF FACT The probative evidence of record is in equipoise as to whether the Veteran has a diagnosis of PTSD and major depressive disorder due to an in-service stressor. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, PTSD and major depressive disorder was incurred in, or is otherwise related to service. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to service connection for acquired psychiatric disability, to include post-traumatic stress disorder (PTSD) and major depressive disorder as secondary service-connected to right ear hearing loss and tinnitus In seeking VA disability compensation, the Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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 may also 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). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran claims that he has an acquired psychiatric disorder, to include PTSD and a major depressive disorder as secondary to his service connected right ear hearing loss and tinnitus. In addition to relating his acquired psychiatric disorder to his right ear hearing loss and tinnitus, the Veteran also testified during his February 2012 hearing that he witnessed a beating that resulted in the death of a soldier while he was stationed in Japan. The record also reflects that the Veteran attributes his psychiatric disorder to experiencing racism in service and witnessing a soldier overdose. In addition, the criteria for establishing service connection for PTSD differ from the criteria pertaining to other acquired psychiatric disorders. As to the pertinent case, service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition pursuant to 38 C.F.R. § 4.125 (a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)); (2) credible supporting evidence that the claimed in-service stressors occurred; and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304 (f). The evidence necessary to establish the occurrence of a recognizable in-service stressor event will vary depending upon whether a veteran engaged in “combat with the enemy.” See Gaines v. West, 11 Vet. App. 353, 359 (1998). Participation in combat is determined on a case-by-case basis, and it requires that a veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999); Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). 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, as long as such testimony is found to be credible and “consistent with circumstances, conditions or hardships of service.” 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f)(1); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Effective July 12, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304 (f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: “(f)(3) If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and 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, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, ‘fear of hostile military or terrorist activity’ means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.” The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). A November 1973 service treatment record (STR) diagnosed the Veteran with an antisocial personality disorder. A September 2009 VA treatment record showed diagnoses of alcohol dependence, cannabis abuse (in remission), cocaine abuse (in remission), nicotine dependence (in remission), mood disorder and PTSD. In March 2013 the Veteran was afforded a VA PTSD examination. The examiner determined that the Veteran did not meet the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV) criteria for a diagnosis of PTSD. However, the examiner did diagnosis the Veteran with alcohol dependence, cocaine dependence, substance abuse mood disorder and antisocial personality disorder (rule out). The examiner noted in his report that it was not possible to differentiate which symptoms are attributable to each diagnosis, because each of the Veteran’s diagnoses are interrelated to substance abuse. Based upon a review of the record and an in-person examination, the examiner determined that the Veteran did not meet the criteria for a PTSD diagnosis and it was the examiner’s opinion that the Veteran’s reports of depression is not etiologically related to service, or is caused by or aggravated by his service-connected disabilities. He reasoned that the Veteran was not treated for any mental health condition in the military or within presumptive period following the service. He was seen by mental health for one visit in military, November 1973, and diagnosed with Antisocial Personality Disorder and recommended for discharge from military accordingly. It was the March 2013 examiner’s opinion that the Veteran’s report of depression is not related to his service connected tinnitus or impaired hearing. A review of Veteran’s medical records is silent for any complaints of depression related to tinnitus with the exception of the Veteran’s visit with Dr. H in October 2009. The Veteran’s medical records show complaints related to Osteoarthritis/multiple joint pain, foot pain, knee pain, left ankle pain, degenerative joint disease, and plantar fasciitis. There is no mention by Veteran of any problems related to his tinnitus or hearing loss and neither condition is mentioned in the Veteran’s problem list to date. The Veteran’s mental health treatment to date has been related to a long history of substance abuse and legal problems. The Veteran continued to use alcohol and cocaine. He admitted to using the day prior to his current examination. The Veteran was unable to quantify to the examiner his current pattern of substance use. Based on a thorough review of medical records/c-file, invalid psychological testing, and clinical interview the examiner diagnosed the Veteran with a substance use disorder and mood disorder related to substance abuse; neither of which is related to the Veteran’s military service or caused by or aggravated by his service-connected disabilities. In November 2017 the Veteran was afforded an additional VA examination. The Veteran was diagnosed with severe alcohol use disorder and moderate cannabis use disorder. It was noted in the examination report that although the Veteran presented with several symptoms of depression, these appeared to be induced by alcohol abuse. The examiner also found that there was no evidence that there were any factors in his military experience which would be related to PTSD. Based upon an in-person examination and a review of the record, the examiner determined that the Veteran’s claimed acquired psychiatric disorder, to include PTSD and major depressive disorder as secondary service-connected to right ear hearing loss and tinnitus, as less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury event, or illness. He reasoned that the Veteran’s current diagnosis meets DSM criteria, but there is no evidence that it is related to the Veteran’s military service. There is no report of mental health issues during the Veteran’s service time and no consistent report of ongoing mental health problems since military service. Therefore, there is no nexus between military service and current symptoms. The Veteran also submitted to a private psychological evaluation in October 2018. He was interview by telephone and the Veteran’s claims file was reviewed. During the examination, the Veteran was oriented to place, date and situation. He struggled to answer the examiner’s questions and frequently commented that he tried not to think about the topics. The Veteran expressed feeling depressed or sad, made him feel weak so he preferred to discuss other topics. He also lacked adequate vocabulary to describe his emotional process. In regard to credibility, the examiner determine that the Veteran’s report was consistent with the available documentation and the examiner found no reason to doubt his veracity. During the examination, the Veteran was frequently unable to recall details of major life events. However, his comprehension was adequate and the content of his thoughts was generally organized and coherent. In regard to his in-service stressors, the Veteran described witnessing a racially motivated fight, which he believed resulted in a soldier’s death. On another occasion, he witnessed a soldier overdose on illicit narcotics. He continued to relive that experience. Following his discharge from service, the Veteran became angry. He alleged that he did not know about the reasons for his discharge until he attempted to reenlist in the military. After struggling to find a place in the workforce, the Veteran reported that he began to become reliant on controlled substances to manage his mood. When sober, his mind returned to military experiences. The Veteran reported that he continued to have intrusive thoughts about the deaths he witnessed and the racially-based hostility he experienced in service. In conclusion, the examiner found that the Veteran met the DSM-5 criteria for PTSD. She determined that this was based on the Veteran witnessing the death and serious injury of other servicemen. Specifically, he witnessed drug overdoses and acts of racism. Based upon a review of the Veteran’s claim’s file and a telephone interview, the examiner determined that it was at least as likely as not that his PTSD was due to an in-service stressor. The examiner explained that his PTSD diagnosis was caused by his in-service experiences with the death and injuries of fellow soldiers, including overdoses. She considered whether his PTSD could be due to the fact that he has also been shot and stabbed outside of military service, but ruled these out as his stressor, because he did not express negative feeling about these events. Furthermore, he was stabbed prior to service and exhibited no signs of PTSD in service. It was relayed that he began exhibiting symptoms of PTSD five years prior to being shot. The examiner also found that the Veteran met the diagnostic criteria for major depression. She also concluded that his major depression was at least as likely as not related to his military service. It was determined that this major depression was caused by his exposure to traumatic events in service. These traumatic events caused him to have intrusive memories of the events and he began to use alcohol and controlled substances in order to cope with his feelings. After a review of the evidence of record, the Board finds that the evidence for and against service connection for an acquired psychiatric disorder to include PTSD and depression is in equipoise; that is, the evidence demonstrating that the Veteran has PTSD with depression that is related to in-service stressors is equally weighted against the evidence demonstrating other etiology, such as the psychosocial stressors mentioned in the VA examination in 2017 including his alcohol and substance abuse disorder. To the extent that the Veteran reports racism during service, the Board finds his reports credible. Moreover, a private examiner has related the Veteran’s psychiatric disability to his inservice stressors including his exposure to racism. Therefore, resolving reasonable doubt in the veteran’s favor, the Board finds that it is at least as likely as not that the Veteran has PTSD and major depressive disorder due to his in-service stressors. The Veteran is therefore entitled to the benefit of the doubt. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, it is the judgment of the Board that service connection is warranted for PTSD with major depressive disorder. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel