Citation Nr: 20007459 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 15-22 350 DATE: January 30, 2020 ORDER Service connection for an acquired psychiatric disorder, diagnosed as chronic generalized anxiety, depressive disorder not otherwise specified (NOS), and poly substance dependence in full remission, is granted. FINDINGS OF FACT 1. The Veteran has a current acquired psychiatric disorder diagnosed as chronic generalized anxiety, depressive disorder NOS, and poly substance dependence in full remission; the Veteran does not have a current disability of PTSD for VA purposes. 2. The Veteran experienced an in-service psychological event associated with the current disability. 3. The acquired psychiatric disorder had its onset in service and is etiologically related to service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for chronic generalized anxiety, depressive disorder NOS, and poly substance dependence in full remission have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.326, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter is on appeal from a July 2012 notification letter from the Regional Office (RO) in Indianapolis, Indiana. The Veteran filed a notice of disagreement (NOD) in July 2013. A statement of the case (SOC) was issued in April 2015. The Veteran filed a substantive appeal (VA Form 9) in May 2015. The Veteran testified in Indianapolis, Indiana, at a Travel Board hearing in October of 2015 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. In an August 2018 Board Decision, the Board reopened service connection for an acquired psychiatric disorder and denied the underlying service connection claim. The Veteran appealed the Board decision to the Order by the U.S. Court of Appeals for Veterans Claims (CAVC). An August 2019 Order by CAVC adopts a Joint Motion for Partial Remand (JMPR) filed by the parties. Relevant to the instant decision, in the JMPR, the parties agreed to not disturb the favorable finding that reopened and remanded the underlying service connection claim for an acquired psychiatric disorder. The parties agreed that the Board did not provide adequate reasons and bases when it found that the Veteran was not credible in reporting an in-service psychiatric event of being deployed to Vietnam. The parties noted that the Veteran reported experiencing psychiatric symptoms while he was waiting to be deployed to Vietnam, and that the Veteran did not claim to experience symptoms in Vietnam because the Veteran was not deployed to Vietnam. The parties agreed to a vacatur of the denial of service connection for an acquired psychiatric disorder and a remand to the Board for reasons and bases regarding the Veteran’s credibility. Thus, the issue before the Board is a claim for service connection for an acquired psychiatric disorder. The Board has recharacterized the issue on appeal as service connection for an acquired psychiatric disorder, in accordance with the United States Court of Appeals for Veterans’ Claims decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claim for benefits of one psychiatric disorder also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection for an Acquired Psychiatric Disorder Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection for PTSD requires medical evidence diagnosing the condition 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. See 38 C.F.R. § 3.304(f). The diagnosis of PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125, in conformity with the Diagnostic and Statistical Manual of Mental Disorders (DSM-V). 38 C.F.R. § 3.304(f). Where the determinative issue involves a question of medical diagnosis, not capable of lay observation, competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis of medical opinion. 38 C.F.R. § 3.159(a)(1); see Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that “PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify”). The Veteran contends that during service he experienced constant anxiety and stress while waiting to be deployed to Vietnam. At the October 2015 Travel Board hearing, the Veteran explained that his first sergeant repeatedly told the whole unit that it was going to be deployed and drilled the unit in full pack several times to prepare for deployment. The Veteran also described his interaction with a fellow soldier who returned from his tour of duty in Vietnam. The soldier’s face was disfigured and he told the whole unit about his traumatic experience in Vietnam. The Veteran contends that he began using drugs in service to cope with the stress of impending deployment. The Veteran claims that he has been impacted by an acquired psychiatric disorder since discharge from service. After a review of all the evidence, both medical and lay, the Board finds that the Veteran has a current acquired psychiatric disability, diagnosed as chronic generalized anxiety, depressive disorder NOS, and poly substance dependence in full remission. See November 2015 Private Treatment Records (The private examiner diagnosed chronic generalized anxiety); November 2010 VA Examination (The VA examiner diagnosed polysubstance abuse in full sustained remission and depressive disorder NOS). While private treatment records indicate an impression of PTSD, the private treatment examiners only generally established that the Veteran’s symptoms were consistent with PTSD, and in doing so, did not specifically go through the various criteria required for a diagnosis of PTSD for VA purposes under DSM-5; thus, the Board finds that the weight of the evidence shows that the Veteran does not have a current disability of PTSD. The Board finds that the evidence is in equipoise as to whether the Veteran experienced an in-service psychiatric event related to the current acquired psychiatric disability. The Veteran claimed that he experienced psychiatric symptoms in service while he was waiting to be deployed and used drugs to cope with those symptoms. Upon review of the service treatment records, there are no complaints of or treatment for any psychiatric disorder. In August 1971 service treatment records, the Veteran was brought to a medical clinic under suspicion of drug use; the urinalysis results were negative and the diagnosis was inconclusive. The March 1972 service separation examination indicated that the psychiatric and neurologic systems were in normal condition. Even though post-service VA medical treatment records vaguely reference Vietnam service, the Veteran repeatedly explained that the psychiatric symptoms began when the Veteran was waiting to be deployed to Vietnam and not in Vietnam because he was never deployed. See August 2009 Travel Board Transcript (The Veteran testified that he felt anxious while he was waiting to be deployed to Vietnam and when he saw injured soldiers come back from Vietnam); November 2009 VA Treatment Records (The Veteran reported anger due to combat exposure in Vietnam); September 2010 VA Memo (VA noted that the Veteran received counseling services due to combat exposure); October 2010 VA Treatment Records (The Veteran scheduled an appointment to continue the discussion on “unresolved combat exposure”); October 2015 Travel Board Transcript (The Veteran clarified that he was never deployed to Vietnam, that there were mistakes in the record about his service, and that the psychiatric symptoms are related to waiting for deployment). Thus, the Board finds that the Veteran experienced an in-service psychiatric event related to the current acquired psychiatric disability. The Board resolves reasonable doubt in favor of the Veteran and finds that the acquired psychiatric disorder had its onset in service and is etiologically related to service. The Veteran submitted to a VA examination in November 2010. The VA examiner rendered a negative nexus opinion, reasoning that the Veteran’s reporting was inconsistent and vague, and that he had a “sense of entitlement” to VA benefits; however, the Board finds that the eight-page November 2015 private examination is at least as probative as the November 2010 VA examination. The November 2015 private examiner diagnosed chronic generalized anxiety disorder and noted that there was no evidence of such impairment prior to service. The private examiner opined assessed that the acquired psychiatric disorder began in service following unpredictable deployment drills that made the Veteran feel that combat deployment was always imminent, unavoidable, and unpredictable. The private examiner explained that the Veteran used substances as a way to manage these symptoms. Resolving reasonable doubt in favor of the Veteran, the Board finds that the acquired psychiatric disorder had its onset in service and is etiologically related to service, and the criteria for service connection for the acquired psychiatric disorder have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, Associate 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.