Citation Nr: 20042365 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 06-28 752 DATE: June 23, 2020 ORDER Service connection for posttraumatic stress disorder (PTSD) and a major depressive disorder is granted. FINDING OF FACT The Veteran has PTSD and a major depressive disorder that are related to his military service. CONCLUSION OF LAW The criteria for service connection for PTSD and a major depressive disorder have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1967 to March 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2005 rating decision. The Veteran testified at hearings before Veterans Law Judges (VLJs) in April 2010 and November 2014. The VLJs who presided over those hearings are no longer employed at the Board. In July 2017, the Veteran was given another chance for a hearing; however, he did not respond within 30 days. Therefore, the Board will continue review of the appeal. A transcript of each hearing is in the claims file. In November 2017, the Board issued a decision denying service connection for an acquired psychiatric disability, including major depression, and remanding service connection for PTSD for additional development. The Veteran appealed the Board’s decision denying service connection for an acquired psychiatric disability, including major depression, to the United States Court of Appeals for Veterans Claims (Court). In a June 2018 Order, the Court granted a June 2018 Joint Motion for Partial Remand (JMPR) of the parties and remanded the case to the Board for action consistent with the JMPR. In April 2019, the Board remanded the claim for service connection for an acquired psychiatric disorder, to include depression, for additional development. Service connection for PTSD and a major depressive disorder is granted. Under VA law, service connection may be granted for any current disability that is the result of a disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). To be entitled to service connection for PTSD, as opposed to another mental health disorder, the record must include: (1) medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-V for appeals certified after August 4, 2014); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). There are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304 (f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than the Veteran's service records which may corroborate his or her account of the stressor incident. Examples of such evidence include but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Examples of behavior changes that may constitute credible evidence of the stressor include but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. In various statements provided throughout his appeal, including sworn testimony provided at his April 2010 and November 2014 hearings, the Veteran asserts he has an acquired psychiatric disorder related to his active service. Specifically, he maintains he developed a psychiatric condition during active service due to racial harassment that eventually manifested into physical assault, and this psychiatric condition has continued to persist to the present. Here, all three elements to establish service connection have been satisfied. See 38 C.F.R. §§ 3.303 (a), Shedden v. Principi, 381 F.3d at 1166-67. First, as concerning the requisite current diagnosis, the record reflects a current psychiatric pathology, including diagnoses of an unspecified recurrent depressive disorder, which was noted in December 2019 by a VA psychologist, and PTSD, which was noted by a clinical psychologist in November 2018. A private psychologist also diagnosed a major depressive disorder and PTSD in May 2020. Second, the record shows the Veteran was exposed to racial slurs and other types of harassment from other soldiers during active service and experienced subsequent persistent psychiatric symptoms because he has consistently reported the same account surrounding the circumstances of his active service. The Board finds the Veteran to be credible in this regard. In April 2010, the Veteran testified at his Board hearing that he was subjected to racial slurs and racial harassment. In his testimony, he states he became angry and overwhelmed, which got him into trouble. He reports trying to obtain help and even went to counseling, but he continued to have problems because no one helped him stop the harassment. Eventually, he began to have thoughts of harming himself, and he attempted to cut his wrists. At one point, he was wrestled to the floor, placed in a straitjacket, and sent to a hospital for treatment. He was eventually sent home for convalescence. The Veteran notes he experienced dread on the thought of going back to his unit, and as soon as he got back, the racial harassment continued. Eventually, he reports being clubbed, beaten, and removed from his unit and kept in chains. He recalls that his company commander ordered him to stand up and accompany him back to his unit; however, the Veteran was not able to comply because his hands and feet were bound in chains. He was then placed into the stockade, and his unit was told that he was being punished for refusing a direct order. After being sentenced to the stockade, he was processed for discharge. He also testified that the character of his discharge affected his ability to get employment, which resulted in severe hardship and further psychiatric symptoms. At his November 2014 Board hearing, the Veteran testified to experiencing racial harassment after being transferred to Fort Bliss in El Paso, Texas, where he was exposed to racial slurs and other forms of harassment by fellow soldiers. He reports trying to deal with the harassment, but he eventually felt overwhelmed and got into trouble. He was assigned to evening counseling sessions but continued to experience racism. He eventually began hurting himself and attempted to cut his wrists, and as a result, he was hospitalized and sent home for convalescence before returning to hospitalization. Again, he reports trying to get help from his superiors, but he did not receive any help. He eventually began having trouble sleeping and experienced depression and was sent to a sociologist. The sociologist recommended the Veteran transfer, but when the Veteran attempted to do so, he was denied. He then began experiencing anger and violent reactions from feeling frustrated. He felt that his situation was a death sentence, and as a result, he took a Coke bottle, slammed it to the ground, and tried to cut his wrist with a broken piece of glass. He was placed in a straitjacket and was put in hospitalization. He recalls experiencing fear because he was told that he was going to be sent back to the same environment that had caused his psychological stress. After his hospitalization, he was assaulted and placed in the stockade. He recalls being shackled and being ordered to stand up to walk back to the company; however, he could not get up because of having been shackled. As a result, he was locked up in the stockade and received a special court martial. The Veteran has provided statements consistent with his April 2010 testimony and his November 2014 testimony. For example, his CAPRI records show the Veteran providing statements during treatment that are consistent with his testimony. See October 2009 Primary Care Note. Furthermore, a December 2004 discharge summary from the Washington VAMC notes the Veteran has experienced depression for many years with it worsening in the past few years after divorcing his wife. In April 2006, a VA psychiatrist wrote, “[The Veteran] has suffered from continued psychiatric problems throughout his life. His current depression could have been caused or exacerbated by psychiatric problems that began during his military service.” As a result, the Board finds the second Shedden element is met. Finally, as to the third element, that of a nexus between the Veteran’s psychiatric disability and the in-service stressor, VA received a positive nexus opinion in May 2020. A clinical psychologist found the Veteran met the full DSM 5 criteria for PTSD and depression secondary to his in-service stressors of racial abuse and assaults by military police. Furthermore, as noted above, in April 2006, a VA psychiatrist wrote, “[The Veteran] has suffered from continued psychiatric problems throughout his life. His current depression could have been caused or exacerbated by psychiatric problems that began during his military service.” The Board acknowledges the negative VA opinions of record but finds them all to be inadequate For example, in June 2010, a VA examiner notes that the Veteran exhibited suicidal ideation and had a suicidal attempt in 1967. The examiner further notes the Veteran’s reported his symptoms worsened in 2003 following a loss of employment, a diagnosis of hepatitis C, and divorce. The examiner then goes on to note a negative opinion. The Board does not find the examiner’s opinion adequate for service connection purposes because the examiner did not provide adequate reasons or bases for not considering the Veteran’s lay statements in reaching their conclusion. The opinion reflects the Veteran’s psychiatric symptoms worsened but does not provide an opinion as to the cause of the Veteran’s psychiatric pathology. Furthermore, the opinion does not discuss all the evidence of record that is in favor of service connection. For example, a December 2004 VA discharge summary notes the Veteran has experienced depression for many years, and in April 2006, a VA psychiatrist provides an opinion that supports service connection. Due to the deficiencies in the June 2010 VA opinion, an addendum opinion was obtained in July 2011. However, the responses provided by the examiner in the addendum opinion do not correct the deficiencies of the June 2010 VA opinion because no rationale was provided for the findings, and the addendum opinion did not provide a response as to why the Veteran’s lay statements were not considered. A second addendum opinion was obtained in November 2011. However, the examiner did not provide any rationale for their findings, and as a result, the Board finds the addendum report to be once again inadequate. In September 2015, a VA examiner found that the Veteran did not meet the DSM-5 criteria for PTSD because he did not report an event which meets Criterion A for a PTSD diagnosis, and he did not endorse any clinically significant PTSD symptoms. The examiner did find the Veteran met the criteria for a diagnosis of an unspecified major depressive disorder. The examiner found, however, that the Veteran’s unspecified major depressive disorder was not related to his active service. The examiner states, “Based on a review of the all medical records, the [V]eteran’s current Major Depressive Disorder developed around 2003, after a series of psychosocial stressors.” The examiner then states that the Veteran’s psychiatric episode and symptoms during service were unrelated to his post-service depressive symptoms because he did not return to treatment until 2003, which the examiner found did not indicate a history of chronic and continuous depressive symptoms. The examiner concluded, “There is no evidence that the February 1968 incident and diagnosis of Depressive Reaction/Aggressive Personality Disorder is related to the current depressive symptoms which are part of a distinct and separate psychiatric disorder.” As with the prior VA opinions, the Board finds the September 2015 VA opinion inadequate because there is no discussion as to why the Veteran’s lay statements were not considered. VA obtained a medical opinion in August 2016. The VA examiner provided a negative opinion. In support of their opinion, the examiner notes that the symptoms described in the Veteran’s military medical records are suggestive of a personality disorder; though, the examiner found the Veteran at that time did not have a personality disorder diagnosis. The examiner found the Veteran’s symptoms were not suggestive of an anxiety or depressive disorder. The examiner notes that while the Veteran may have experienced a symptom of depression at that time (specifically the suicidal gesture) and was diagnosed with a “depressive reaction,” this does not mean that he met criteria for a depressive disorder because depressive disorders include a spectrum of symptoms and not just one symptom. The examiner found “those symptoms were not described or outlined in the military medical record.” Furthermore, the examiner supported their opinion by finding that the Veteran did not return to mental health treatment until 2003, which, according to the examiner, did not indicate a history of chronic and continuous depressive symptoms. The examiner also acknowledged that the Veteran reported attempting suicide in 1980s and noted that there is documentation related to the event but found there was no evidence that the attempt was related the Veteran’s active service, which had occurred over ten years earlier. Again, the Board does not find this VA opinion probative because while the examiner found no history of chronic and continuous depressive symptoms, the examiner did not consider the Veteran’s lay record in reaching this conclusion. In fact, the examiner did address the Veteran’s report that he had attempted suicide in the 1980s, and they note that there was evidence to support the Veteran’s statement. As a result, after finding the Veteran’s report credible as it was corroborated elsewhere, the VA examiner should have considered the lay evidence of record suggesting chronic and continuous psychiatric symptoms related to the Veteran’s experiences during active services and his hardships related to having trouble finding work due to the initial nature of his discharge. A February 2017 VA opinion notes, “The [V]eteran reports feeling depressed ‘on and off’ since service; however, a subjective feeling of depression is not equivalent to a DSM clinical diagnosis of depression.” The examiner then notes there is no evidence that the Veteran’s current symptoms of depression are related to his period of military service. In support of this finding, the examiner observes the Veteran did not return to mental health treatment until 2003, which does not indicate of a history of chronic and continuous depressive symptoms. Instead, the examiner finds that the Veteran’s current depressive symptoms are related to current psychosocial stressors, and there is no evidence that the February 1968 incident and diagnosis of a depressive reaction/aggressive personality disorder are related to the current depressive symptoms. The Board finds the probative value of the opinion is diminished because the same examiner acknowledged in August 2016 that the Veteran reported attempting suicide in 1980s and noted that there is documentation related to the event. In February 2017, the examiner found there was no evidence that the attempt was related the Veteran’s active service, which had occurred over ten years earlier; however, again, the examiner failed to address the Veteran’s statements that he has experienced psychiatric symptoms since active service. In March 2018, a VA examiner determined that the Veteran did not meet the criteria for Criterion A for a PTSD diagnosis under DSM-5, which is exposure to actual or threatened death, serious injury, or sexual violence. The examiner notes, “The [V]eteran did not report an incident which involved death or serious injury.” They continue, “As a result, the fact that he was tackled does not meet Criterion A for a traumatic event and a related PTSD diagnosis.” However, at his December 2014 hearing, the Veteran reported that he feared for his life and was “essentially subdued or assaulted up to this point” and then “arrested, court martialed.” Accordingly, the Board does not find this opinion persuasive as it apparently ignores the Veteran’s testimony or lay evidence of record, which the Board finds credible. Finally, there is a negative VA opinion from December 2019. The Veteran was found to meet the full DSM-5 criteria for a diagnosis of a recurrent unspecified major depressive disorder. Regarding the nexus of the Veteran’s psychiatric disorder, despite a lengthy opinion, the examiner hinges their finding on a lack of any psychiatric symptoms for over thirty years after separating from active service. The examiner states, “There is no evidence in the c-file that the [V]eteran was exhibiting any mental health symptoms or had sought any mental health treatment after his discharge from the military in 1968 up until he began to experience psychosocial stressors in 2003.” Furthermore, the examiner found the Veteran did not have a diagnosis of PTSD even though a private evaluation notes “there had been multiple stockade assaults which caused the [V]eteran’s PTSD and depressive symptoms. However, there is no independent evidence or corroboration for these accusations in the c-file.” (Continued on the next page)   The Board finds this VA opinion insufficient because although the examiner found there was no evidence of psychiatric symptoms after service, harassment, or an assault, there is clearly sufficient, credible lay evidence of record for a history of psychiatric symptoms since the Veteran separated from service and of the events that could meet the criteria for PTSD. Accordingly, based on the credible lay evidence of record, the positive nexus opinion of record, and that any reasonable doubt must be resolved in favor of the Veteran, entitlement to service connection for PTSD and a major depressive disorder is warranted. P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.