Citation Nr: 1806942 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-08 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder. ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel INTRODUCTION The Veteran served in the United States Air Force from January 1968 to July 1971. The Veteran received multiple awards and medals including the Korean Defense Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Private treatment records and VA treatment records reflect diagnoses of depression, anxiety, and PTSD. As such, the Board has characterized the issues of entitlement to service connection for depression as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). FINDINGS OF FACT 1. The Veteran does not have a diagnosis of PTSD based on a noncombat stressor that has been corroborated by credible supporting evidence. 2. The evidence of record is at least in equipoise as to whether the Veteran's currently diagnosed psychiatric disability, characterized depressive disorder, was incurred in service. CONCLUSION OF LAW The criteria for service connection for acquired psychiatric disorder, characterized as depressive disorder, are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.326(a). In light of the favorable disposition of the claim for service connection for an acquired psychiatric disorder, the Board finds that any deficiencies with regard to the duty to notify or assist is nonprejudicial, and thus, no further discussion of VA's duties to notify and assist is necessary. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). Psychoses, but not other acquired psychiatric disorders, are listed as a chronic condition under 38 C.F.R. § 3.309(a). Therefore, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to the claims for service connection for an acquired psychiatric disorder other than a psychosis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 446-449 (1995) (en banc). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the Veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the Veteran "engaged in combat with the enemy." Id. If VA determines that the Veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the Veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the Veteran's service." Id. If, however, VA determines that the Veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the Veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the Veteran's testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). 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. "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. 38 C.F.R. § 3.304(f). If a Veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to "fear of hostile military or terrorist activity," then the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283, 289 (1994). The question of whether a Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on recon., 1 Vet. App. 406, 407 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. The Veteran seeks service connection for PTSD and service connection for an acquired psychiatric disorder, to include depression, which he asserts is related to service or to service-connected bilateral hearing loss. In July 2012, the Veteran stated that he had been treated for PTSD and depression since the early 1970s. He reported that he had been on medications throughout much of his adult life and continued to be on different types of medications. In his October 2013, notice of disagreement the Veteran stated that his hearing loss affected every facet of his daily life, including employment. The Veteran stated that his job duties had been changed due to his hearing loss, and he found it very frustrating to have to ask others to repeat what was said to him. The Veteran served in the United States Air Force from January 1968 to July 1971. Service treatment records in September 1968 reflect a diagnosis of depressive reaction, acute and anxiety reaction. The Veteran had overdosed on medication following a quarrel with his spouse in September 1968. The Veteran reported that he wanted to die because of his marital problems. Military personnel records in October 1968 reflect that in September 1968, the Veteran had been temporarily disqualified pending medical evaluation. October 1968 service treatment records reflect that a treatment provider noted that the Veteran's depression was gone, and his appetite was good. The treatment provider noted that the Veteran would not requalify until his family problems were settled. Military personnel records in October 1968 reflect that a request to remove the temporary disqualification was granted, and the Veteran was found capable of performing duties. In a September 2012, statement in support of claim for service connection for PTSD, the Veteran stated that he woke up in a hospital in January 1968. He stated that he was told he had tried to commit suicide, following an argument with his spouse. In a September 2012, statement in support of claim for service connection for PTSD, the Veteran stated that in January 1971, he found fellow service member E., inside a post bleeding from the left leg. The Veteran took off his belt, tied it above the wound, and applied pressure to stop the bleeding. The Veteran stated that following the incident, he had recurring nightmares of the incident. In July 2013, the Veteran stated that in 1970, he left Korea for a 30-day leave to spend Christmas with his family. Upon returning to Korea, he received divorce papers from his spouse. The Veteran was relieved from his duties and his weapons were taken pending marital counseling. After that, the Veteran returned to full duty. In 1971, his roommate, E., sustained a self-inflected a wound with a weapon. After he had just finished his rounds, he heard sounds of screaming from E.'s post. When he got there, he found E. bleeding from his leg. The Veteran removed his weapons and took his belt to stop the bleeding, and was covered in blood. The Veteran reported that following the incident, E. was treated at a local hospital, and was later discharged from the Air Force. Shortly after the incident, a few months later, in 1971, the Veteran was stationed at E.'s post, when he noticed an individual climbing the rocks towards his commander's home at around 2:00 or 3:00 am. The Veteran shouted at the individual, who did not respond. The Veteran shot a round over the individuals head, and ran towards the individual and held his weapon on him until help arrived. He later found out that it was one of the commander's household employees. A September 2013 VA memorandum reflects a formal finding of unavailability of PTSD stressors. The memorandum reflects that the Veteran's military personnel records did not reflect combat assignment and/or receipt of stressors medals. In August 2013, Joint Services Records Research Center (JSRRC) notified VA that it could not verify the Veteran's reported stressful event, fellow service member E.'s self-inflicted wound. In August 2013, U.S. Air Force Office of Special Investigation, notified VA that it could not verify the Veteran's reported stressful event, fellow service member E.'s self-inflicted wound. The Board notes that the Veteran had active service during a period of war. Military personnel records reflect that the Veteran served as a security policeman in Korea from March 1970 to March 1971. The Veteran's DD Form 214 reflects that his military occupational specialty was as a security policeman. The Veteran does not allege, and the evidence does not demonstrate that the Veteran engaged in combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 are not applicable. Post-service treatment records reflect diagnoses of depression and PTSD from December 2000. August 2003 VA treatment records reflect a diagnosis of depression. The Veteran reported that he had been feeling depressed for a long time. (See LCM Documents, 09/21/2013 CAPRI, Pg. 4) In an April 2011 letter, the Veteran's supervisor stated that the Veteran had difficulty communicating with his fellow co-workers due to his hearing loss, which caused the Veteran to be ashamed and embarrassed in front of his co-workers. In a July 2012 letter, the Veteran's private treatment provider, P.S., stated that he had been treating the Veteran for severe depression and posttraumatic stress disorder from December 2000. The treatment provider noted that the Veteran had a history of severe depression and PTSD while in the military as his military records reflected that the Veteran attempted to commit suicide in 1968. A July 2012 letter from Dr. J.W. reflects a diagnosis of major depressive disorder. The treatment provider noted that the Veteran had significant hearing impairment, which exacerbated his depression. The treatment provider noted that due to the Veteran's severe hearing impairment the Veteran had great difficulty communicating with others and establishing satisfying relationships. The treatment provider also opined that the Veteran had been suffering from major depression since 1968, when he was hospitalized for a suicide attempt, based upon a review of the Veteran's medical records, and clinical treatments of the Veteran. The treatment provider noted that the Veteran had been married seven times, with marginal success in his relationships. The Veteran's current marriage was unstable and had many difficulties due to his depression and poor communication skills. The treatment provider noted that throughout the years the Veteran had been on a variety of antidepressants with only mild to moderate success. A September 2012, initial psychiatric evaluation with a private treatment provider reflected a diagnosis of recurrent major depression, dysthymia, and PTSD. The Veteran reported that he had a long history of anxiety and depression related to his experiences from the Air Force. He reported that depressive symptoms had been present for the past thirty years. In 1968, the Veteran attempted suicide by drug overdose and use of alcohol. The Veteran reported that his PTSD came after he saw another service member commit suicide in front of him. The Veteran reported intrusive nightmares of this event. The Veteran also reported free-floating anxiety, irritability and persistent depressive mood. In a September 2012 addendum opinion, Dr. J.W., the Veteran's private treatment provider opined that the Veteran's current deep depression stemmed from two areas, his suicide attempt in the Army and its impact upon his fractured self-concept affecting his interpersonal relationships and his gradual loss of hearing. The treatment provider noted that the Veteran was psychologically haunted by the trauma of his suicide attempt in the armed service. He also felt awkward around his co-workers because he usually could not hear what they were saying, and felt very isolated due to his lack of communication with others. The Veteran was afforded a VA examination in June 2013, which reflected a diagnosis of PTSD and depressive disorder, not otherwise specified. The Veteran reported that he had found his roommate bleeding to death in March 1971 from a self-inflicted leg wound that covered the Veteran in blood; and the Veteran was able to save the fellow service member by tying his leg with a belt. The Veteran also reported that he had been in a war zone and had to fire on a man climbing where he should not have been and who had failed to identify himself. The examiner opined that the Veteran's conditions were at least as likely as not related to the Veteran's military service. The examiner noted that the Veteran was treated for severe depression in 1968 after his second divorce within one year. He remarried a third time before going to Korea, where he received a "Dear John letter" which was followed within one month by his roommate nearly dying from a self-inflicted wound which bled all over the Veteran while he stopped the bleeding. After that, the Veteran began having symptoms of PTSD including trouble sleeping, nightmares and panic attacks, which continued to the present. The Veteran's depression related to family conflicts, which became aggravated by traumatic events in Korea, which led to PTSD. In an August 2013 letter, Dr. J.W., the Veteran's treatment provider opined that the Veteran's deep depression stemmed from his loss of hearing, contributing to his isolation and lack of communication with others. The treatment provider noted that the Veteran's inability to work and communicate in his current job made him feel that his life had no meaning and he was unable to be productive. The treatment provider opined that the Veteran's hearing loss drastically impacted the Veteran's self-esteem and self-concept, and significantly affected his interpersonal relationships at work and at home. April 2014 private treatment records reflect a diagnosis of anxiety, depression, and insomnia. The treatment provider noted that the Veteran was very stressed from an emotional standpoint, and was very anxious. The treatment provider noted that the Veteran had been going through a lot. The treatment provider noted that the Veteran had lost almost all his hearing, and would probably be losing his job, and he had quite a bit of family problems. In a June 2014 addendum opinion, the June 2013 VA examiner opined that the Veteran's condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner opined that it was as likely as not that the Veteran's current symptoms of anxiety and depression were directly related to events that occurred while he served in the military. The examiner noted that the symptoms were consistent with an unspecified anxiety disorder and an unspecified depressive disorder. The examiner noted that the previously reported diagnosis of PTSD was not appropriate since the reported stressors involving physical danger (firing at an intruder and seeing the attempted suicide of a roommate) remained unverified. The examiner noted however, that the Veteran himself was earlier hospitalized for a suicide attempt, when he overdosed in September 1968, after fighting with his second spouse. The Veteran also received a "dear John" letter from his third spouse during Christmas 1970 while stationed in Korea, which led to unsuccessful marital counseling in May 1971, shortly before the Veteran left the military. The examiner opined that these events were sufficient to account for his increased insomnia, anger and social isolation, which his sister reported after he left the military. The examiner also opined that it was less likely than not that the Veteran's tinnitus was the proximal cause of the Veteran's anxiety and depression. The examiner noted that the Veteran did not indicate any distress about his hearing difficulty. An August 2014 private treatment record reflects a diagnosis of anxiety, depression, and insomnia. The treatment provider noted that the Veteran continued to have crying episodes, did not look forward to activities of daily living, and was not sleeping well. The treatment provider noted that the Veteran was almost completely deaf, which exacerbated the Veteran's problems. The Veteran was afforded a VA examination in May 2016, which reflected a diagnosis of major depressive disorder. The examiner reviewed the Veteran's medical record and conducted an in-person examination. The examiner opined that the Veteran's symptoms met the criteria for major depressive disorder, and that those symptoms were more likely than not, related to circumstances other than the Veteran's military service. The examiner did not provide a rationale for this opinion. In a July 2016 addendum opinion, the May 2016 VA examiner opined that it was less likely as not that the Veteran's symptoms were related to his military service, and noted that the Veteran's symptoms at the time appeared to be subclinical. The examiner obtained medical information through an in-person examination and review of Veteran's record. The examiner did not provide a rationale for this opinion. A September 2016 addendum opinion reflects a diagnosis of major depressive disorder. The May 2016 VA examiner noted that upon another review of the entire record it is apparent that the original diagnosis of major depressive disorder was accurate, as was written in the original C&P note. The examiner further noted that the diagnosis/rationale in the second note, to which the September 2016 opinion was an addendum to, was in error. The examiner noted that as stated in the original examination, it was less likely than not that the Veteran's symptoms were related to military service as the Veteran did not make any logical connection between his ongoing symptoms and his experiences in the military, but said that mood symptoms were related to his current financial status. A November 2016 VA addendum opinion reflects a diagnosis of adjustment disorder. The examiner reviewed available records, without an in-person examination, using the Acceptable Clinical Evidence (ACE) process. The May 2016 VA examiner opined that the Veteran's claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner opined that based on the previous interview and the review of the record, it was as likely as not that the Veteran's symptoms during his military service that precipitated the suicide attempt were at the clinical level. The examiner also noted that during the mental examination in May 2016, the Veteran was diagnosed with depressive disorder. The examiner noted that the Veteran was indeed receiving treatment for depressive disorder, and at the time of that evaluation in May 2016, the diagnosis of depressive disorder was in error. The examiner noted that in May 2016, the Veteran's symptoms and level of functional impairment did not meet the diagnostic criteria for major depressive disorder. The Veteran reported a new relationship, and regular social and physical activities. He cited financial concerns as his primary reason for not visiting his daughter more frequently and he communicated with her regularly in more cost-effective ways. The examiner opined that it was as likely as not that his current symptoms met the diagnostic criteria of adjustment disorder, and at the time, the stressor that precipitated the adjustment disorder was the adjustment to his financial state and the dynamic relationship with his family rather than any incidents during his military service. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for an acquired psychiatric disorder, characterized as depressive disorder, have been met. In this case, private opinions and VA examinations have provided positive nexus opinions linking the Veteran's depressive disorder to service, and further, also linking the Veteran's depressive disorder to his service-connected bilateral hearing loss. In regards to the link between the Veteran's current PTSD and service, the Board does not find the criteria for PTSD to have been met as the Veteran's reported stressors (providing assistance to a fellow service member who had attempted suicide by shooting himself in the leg, and shooting at an individual near his commander's home) are noncombat stressor which remain unverified and uncorroborated by credible supporting evidence to date. A VA psychiatrist has stated that the claimed stressors are adequate to support a diagnosis of PTSD, and that the Veteran's symptoms are related to the claimed stressor. However, while the question of whether a stressor is of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals, the question of whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. Thus, pursuant to applicable regulations, service connection for PTSD cannot be established. In regards to the link between the Veteran's depressive disorder and service, a July 2012 letter and a September 2012 addendum, the Veteran's private treatment provider linked the Veteran's current depression to the Veteran's suicide attempt in service, and noted that the Veteran had been suffering from major depression since 1968. In a June 2014 addendum opinion, a VA examiner also linked the Veteran's current depression and anxiety to his suicide attempt in service. In regards to the link between the Veteran's acquired psychiatric disorder and his service-connected bilateral hearing loss, in a September 2012 addendum opinion and in an August 2013 opinion, the Veteran's private treatment provider also linked the Veteran's current depression with his service-connected bilateral hearing loss. The Board notes the June 2014 addendum opinion, which opined that the Veteran's anxiety and depression was not related to his tinnitus, because the Veteran did not express any distress about his hearing difficultly, did not appear to take into consideration the Veteran's private treatment records which reflect the Veteran's complaints about his bilateral hearing loss and its impact on his social and occupational relationships. Nor does it appear that the June 2014 examiner considered the April 2011 letter from the Veteran's supervisor, which indicated that the Veteran felt ashamed and embarrassed in front of his co-workers due to his bilateral hearing loss. While there is both positive and negative evidence of the issue of secondary service connection, because the Board finds the evidence is equipoise on the issue of direct service connection, no further discussion is warranted in this regard. The Board finds the May 2016, July 2016, September 2016, and November 2016 opinions inadequate. The examiner, who wrote the four opinions, changed the Veteran's diagnosis for each examination. In May 2016, the examiner diagnosed the Veteran with major depressive disorder; in July 2016, the examiner opined that the Veteran's symptoms were subclinical. In September 2016, the examiner opined that the original May 2016 diagnosis was correct, and that the Veteran did have major depressive disorder. In November 2016, the examiner diagnosed the Veteran with adjustment disorder. The examiner based the November 2016 diagnosis on prior interviews with the Veteran and the Veteran's treatment records. Citing the Veteran's social relationships, the examiner noted that although the Veteran was indeed receiving treatment for depressive disorder, at the time of that evaluation in May 2016, the diagnosis of depressive disorder was in error. The Board finds that the examiner did not adequately address the discrepancy between the differing diagnoses of May 2016, July 2016, September 2016, and November 2016. Presumably, the Veteran's relationships and physical activities were known to the examiner in May 2016, in July 2016, and in September 2016. In addition, the examiner did not raise or discuss any new evidence that was acquired during the November 2016 examination, which would support a new diagnosis of adjustment disorder. Further, the Board finds the November 2016 opinion inadequate because it failed to state a clear opinion regarding whether the Veteran's claimed condition was related to service. Although the examiner initially opined that that the Veteran's claimed condition was at least as likely as not related to service, the examiner's rationale contradicted this opinion. Therefore, the Board finds the May 2016, July 2016, September 2016, and November 2016 opinions all contain some inadequacies. However, the Board finds that there is both probative positive and negative evidence as to the question of the relationship of the Veteran's depressive disorder and his military service, thus, placing the evidence is relative equipoise. Accordingly, resolving all reasonable doubt in the Veteran's favor, service connection for an acquired psychiatric disorder, characterized as depressive disorder, is warranted. ORDER Service connection for an acquired psychiatric disorder, characterized as depressive disorder, is granted. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs