Citation Nr: 18159682 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-63 507 DATE: December 20, 2018 ORDER Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression, is granted. FINDING OF FACT The evidence is in relative equipoise regarding whether the Veteran’s psychiatric disability, to include PTSD and depression, was incurred in active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a psychiatric disability of PTSD and depression have been met. 38 U.S.C. §§ 1110, 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to August 1977. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2017, the Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Veteran originally submitted separate claims of entitlement to service connection for PTSD and depression. The Board has recharacterized both claims as a single claim for service connection for a psychiatric disability. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. The Board has an obligation to provide reasons and bases supporting a decision. However, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.30. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a) (2015). When a claimed in-service stressor is related to the Veteran’s fear of hostile military or terrorist activity, the following shall be demonstrated to establish service connection for PTSD: (1) the claimed stressor is consistent with the places, types and circumstances of the Veteran’s service; (2) a VA psychiatrist or psychologist, or contract equivalent, confirms the claimed stressor is adequate to support a diagnosis of PTSD; and (3) the Veteran’s symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f)(3). Fear of hostile military or terrorist activity occurs where 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. 38 C.F.R. § 3.304(f)(3). VA is to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). The Veteran is seeking service connection for a psychiatric disability. The Veteran contends that his current psychiatric disabilities are the result of service in Saudi Arabia in the early 1990s. The service medical records do not show symptoms of or treatment for any psychiatric disabilities during active duty. VA treatment records show consistent treatment for various psychological diagnoses since July 2013. VA treatment records indicate that the Veteran was first officially diagnosed with depression in July 2013 after an initial evaluation for mental health services. In September 2013, on VA examination, the Veteran was diagnosed with PTSD by a VA social worker. A September 2013 VA medical report from a psychiatrist diagnosed depression. During a February 2014 VA examination, the Veteran was found to have a current diagnosis of depression that resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner did not address the etiology of the depression and found that the Veteran did not qualify for a diagnosis of PTSD that conformed with the criteria for PTSD under Diagnostic and Statistical Manual of Mental Disorders (DSM-5). In efforts to further his claim, the Veteran testified before the undersigned Judge in a May 2017 hearing. In this hearing, the Veteran described his time in service in Saudi Arabia and the lingering effects it has had on his life, including sleep disturbance, isolation, aggression, fear, and paranoia. The Veteran’s military personnel records confirm service in Saudi Arabia from November 1990 to July 1991. In support of his claim, the Veteran has also provided a September 2017 private medical report from a licensed psychologist. In that thorough medical report, after reviewing the claims file and conducting an in person clinical interview, the psychologist found that the Veteran had current diagnoses of PTSD and depressive disorder whose symptoms could be dated back to approximately 1991 after experiencing combat-related stressors in Saudi Arabia. The psychologist opined that the Veterans psychiatric disabilities were more likely than not the result of the Veteran’s combat experience in Saudi Arabia and later during service in Bosnia. The Board finds that all three elements have been achieved, and the evidence is at least in equipoise with regard to establishing that the Veteran’s psychiatric disability, to include depression and PTSD, is related to service. The Board assigns great probative value to the September 2017 private medical opinion because of the training, experience, and thoroughness of the examiner. The Board also, in reaching its decision, acknowledges that there is an unfavorable medical opinion of record against the claim. However, the Board cannot ignore the medical evidence finding that the Veteran’s psychiatric disabilities are due to service. At the very least, the evidence regarding the relationship Veteran’s current psychiatric disabilities and his service is in a state of equipoise. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board grants service connection for a psychiatric disability. The Board finds that a psychiatric disability was etiologically related to the Veteran’s service. Accordingly, entitlement to service connection for a psychiatric disability is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Law Clerk