Citation Nr: 20006591 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 12-19 889 DATE: January 28, 2020 ORDER Service connection for depressive disorder is granted. FINDING OF FACT The probative evidence of record demonstrates that it is at least as likely as not that the Veteran’s depressive disorder is related to service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for depressive disorder have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to July 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in April 2016 and October 2017 and was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (2018). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for posttraumatic stress disorder (PTSD) requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence required to support the occurrence of an in-service stressor varies depending on whether the Veteran was engaged in combat with the enemy. If the evidence establishes that a veteran engaged in combat with the enemy and the claim stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of such veteran’s service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(f). Where the record does not establish that a veteran engaged in combat with the enemy, assertions of in-service stressors, standing alone, cannot provide evidence to establish an event claimed as a stressor occurred. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, the claimant must provide credible supporting evidence that the event alleged as the stressor in service occurred. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). If a stressor claimed by a veteran is related to 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 a 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 that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). “[F]ear 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. Id. 1. Entitlement to service connection for a psychiatric disorder The Veteran seeks service connection for a psychiatric disorder, including PTSD and/or depression, which he asserts is related to several stressful events that occurred while serving in Vietnam. First, the Veteran reported exposure to rocket attacks and mortar fire, including an incident in which a piece of shrapnel came through the wall where he was sleeping. Second, he described witnessing a C-47 aircraft crash while attempting to land. Third, he described an incident in which an F-100 aircraft caught on fire while he was disengaging its cable. Upon review of the record, the Board finds that it is at least as likely as not that the Veteran’s current depressive disorder is related to service. Service personnel records confirm that the Veteran served at Phu Cat Air Base in Vietnam from December 1969 to December 1970, where he worked as an electric power production specialist, operating and maintaining aircraft arresting barrier systems and associated equipment. In May 2019, VA obtained documentation of aircraft losses, damage, and accidents at Phu Cat Air Base from April 1970 through December 1970. Those records show that between April 1970 and October 1970, 13 aircraft were damaged at Phu Cat, including an EC-47 aircraft which suffered major damage when the landing gear collapsed in the revetments and 20 inflight engines shut down. That record also notes that between October 1970 and December 1970, there were 19 “aircraft incidents,” six of which involved explosives. Accordingly, the Veteran’s reported in-service stressors appear to be consistent with his circumstances of service, including the official documentation of aircraft losses, damage, and accidents that occurred at Phu Cat Air Base during the time the Veteran served there. See 38 U.S.C. § 1154(a) (2012). Moreover, the Veteran has reported the details of his claimed in-service stressors consistently during mental health treatment, VA examinations, and while testifying before the Board. Based on the foregoing, the Board finds the Veteran’s reported in-service stressors to be credible. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (holding that in weighing credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). Service treatment records do not show any treatment for or diagnosis of a mental health condition during service. However, the record shows that the Veteran consistently reported a history of substance abuse ever since his discharge from active duty, and sought treatment for substance abuse in the 1980’s. He first sought mental health treatment around 1992. Those records are no longer available; however, a letter from the psychologist who treated the Veteran in 1992 indicates that she diagnosed him with PTSD, major depression, and alcoholism. She also indicated that the Veteran’s issues began after his service in Vietnam. Subsequent post-service treatment records show that in January 2002, the Veteran reported touching on some Vietnam issues during a counseling session, which triggered memories that caused him to start drinking again. The treatment provider diagnosed him with depression, anxiety, post stress syndrome, and alcoholism. In February 2008, the Veteran reported increased depression and spending more time with negative thoughts and flashbacks from Vietnam. However, he was not willing to elaborate on the content of those thoughts. In April 2008, a treatment provider noted that he and the Veteran tried working through the PTSD and post-war type nightmares and flashbacks the Veteran was experiencing; however, just discussing it seemed to create more anxiety for the Veteran. The treatment provider encouraged the Veteran to contact VA to get the specialty care he needed. The Board finds the content of these treatment records to be highly credible, as the Veteran was not seeking service connection for a psychiatric disorder at the time, and his statements were made solely for purposes of seeking treatment. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that personal interest may affect the credibility of the evidence). Subsequent VA treatment records show continued treatment for depressive disorder and reports of distressing thoughts and memories of Vietnam. The Veteran underwent a VA examination in August 2012, during which he reported exposure to rocket attacks in Vietnam, working on a plane that caught on fire, unpleasant experiences getting through the airport when he returned from Vietnam, and drinking a fifth of liquor a day ever since his time in service. He stated that he quit drinking in 1985, but relapsed a few years later before getting sober again. He reported depressive symptoms beginning in the mid 1970’s secondary to situations at home, including “everyday life, family, [and] the world.” The Veteran endorsed current symptoms of hypervigilance, difficulty sleeping, and depressed mood. The examiner noted no concerns with the Veteran’s reliability and credibility, but concluded that the Veteran did not meet the diagnostic criteria for PTSD. The Veteran underwent a private psychological evaluation in November 2013, during which he described several stressful incidents while serving in Vietnam. The Veteran endorsed current symptoms of depressed mood, decreased energy, trouble concentrating, anxiety, and difficulty sleeping. The psychologist diagnosed the Veteran with anxiety disorder with symptoms of PTSD and mood disorder with depressive features and opined that it is more likely than not related to his traumatic experiences in Vietnam. In support of this, the psychologist noted that the Veteran reported being in fear for his life in Vietnam; he did not abuse alcohol until his Vietnam service; and he endorsed several avoidance behaviors related to his Vietnam service. The Veteran underwent another VA examination in September 2016, during which he reported exposure to rocket and mortar fire, witnessing an airplane crash nearby, and working on an aircraft that caught on fire while he was underneath it. The Veteran reported having a depressed mood for a long time, which he attributed to “life in general.” He endorsed current symptoms of depressed mood, mild irritability, reduced energy, anxiety, hypervigilance, mild memory loss, occasional feelings of hopelessness, and feelings of detachment or estrangement from others. The examiner diagnosed the Veteran with depressive disorder and indicated that he did not have a diagnosis of PTSD. The examiner noted that the Veteran’s reliability and credibility were good, but opined that the Veteran’s depressive disorder was less likely than not incurred in or caused by service because the Veteran attributed his depression to “life in general.” In November 2016, the VA examiner was asked to provide a more thorough rationale since the Veteran’s general life experience include his military service. In response, the examiner explained that “[t]he Veteran does not articulate any nexus between his depressive disorder and any aspect of his military service.” In May 2019, another VA examiner reviewed the evidence of record and opined that it was less likely than not that the Veteran’s current depressive disorder was related to service. In support of this, the examiner provided the following rationale, in relevant part: [F]indings in their totality reveal [the] Veteran served in Vietnam and was exposed to combat zone related stressors. However, he did not pursue any mental health services during the military and did not endorse any [mental health] concerns per separation exam. Post military, records reveal that [the] Veteran pursued [substance use disorder] and depression treatment in the 1980’s and participated in [mental health] services on occasion, where he endorsed feeling stressed and depressed over various life stressors[,] to include familial, health and combat zone related experiences when he served in Vietnam. . . . [W]hile [the] Veteran’s exposure to stressors in Vietnam is considered to have contributed to his depression, given the multiple stressors that [the] Veteran experienced over the years and the absence of consistent report of ongoing [mental health] problems since military service, it is not possible to establish a nexus between the Veteran’s current depressive disorder and his military service. In summary, the record contains competent medical opinions both in favor of and against the claim. Although the September 2016 VA examiner opined that the Veteran’s depressive disorder was not related to service, the examiner relied solely on the fact that the Veteran did not articulate a nexus between his military service and his current depression. However, the Veteran is not competent to provide a nexus opinion, and it is the examiner’s job to review the evidence of record and determine whether the Veteran’s current depression is related to service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting a layperson’s general competence to testify as to symptoms, but not to provide medical diagnosis or etiology). In this case, the examiner did not appear to consider the Veteran’s reported substance abuse ever since his Vietnam service and treatment records showing that the Veteran relapsed on alcohol after discussing Vietnam with his counselor in 2002 and experienced increased depression and anxiety when his treatment provider tried to work through his flashbacks from Vietnam in 2008. Although the May 2019 VA examiner also provided a negative nexus opinion, the examiner appeared to rely solely on the fact that the Veteran did not receive mental health treatment during service and immediately thereafter. However, service connection may be granted for a disability diagnosed after service when the evidence establishes that the disability was incurred in service. See 38 C.F.R. § 3.303(d). Moreover, the examiner acknowledged that the Veteran’s stressors in Vietnam contributed to his current depression. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current depressive disorder is related to service. After resolving reasonable doubt in the Veteran’s favor, service connection for depressive disorder is granted. See 38 C.F.R. § 3.102. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.