Citation Nr: 20052999 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 16-16 937 DATE: August 10, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, variously classified, is granted. FINDING OF FACT It is as likely as not that the Appellant’s acquired psychiatric disorder, variously classified, is related to his period of active duty for training (ACDUTRA). CONCLUSION OF LAW With reasonable doubt resolved in favor of the Appellant, the criteria for service connection for an acquired psychiatric disorder, variously classified, have been met. 38 U.S.C. §§ 101, 106, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant was a Member of the Marine Corps Reserves from April 1971 to August 1973. The Veteran had ACDUTRA from July 1971 to September 1971. A Travel Board of Veterans’ Appeals (Board) hearing was conducted in March 2019. A transcript of this hearing is contained within the claims file. The Board previously remanded this matter in September 2019 for further evidentiary development. The case has now been returned to the Board for appellate review. Entitlement to service connection for an acquired psychiatric disorder, variously classified Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted for disability resulting from disease or injury incurred during ACDUTRA or injuries incurred during inactive duty for training (INACDUTRA). See 38 U.S.C. §§ 101 (24), 106, 1110, 1131; 38 C.F.R. § 3.6. ACDUTRA is full time duty for training purposes performed by Reservists and Members of the National Guard pursuant to 38 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). INACDUTRA includes duty, other than full time duty, performed for training purposes by Reservists and Members of the National Guard pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505; 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran/Appellant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Appellant is seeking entitlement to service connection for an acquired psychiatric disorder. He contends that he experienced stressors during his basic training that led to his current psychiatric disorder. In September 2012, the Appellant’s private psychologist diagnosed him with posttraumatic stress disorder (PTSD), insomnia due to PTSD, panic disorder with agoraphobia and major depressive disorder as a result of PTSD. Additionally, the January 2020 VA examiner confirmed the psychiatric disorder diagnoses. Thus, there is evidence of current psychiatric disorders. As for a nexus, the Appellant’s private psychologist submitted psychological updates and a PTSD disability benefits questionnaire (DBQ) opining that the psychiatric disorders are related to his ACDUTRA. Specifically, in a November 2013 update, the private psychologist opined that the Appellant was severely emotionally injured while serving in the military and that his subsequent life post-military has been affected by his military service and is causally related to his current symptoms and inability to perform competently at any work setting. More recently, in an April 2019 report, the private psychologist opined that the Appellant displayed symptoms of PTSD that are at least as likely as not caused by his known stressors in the military, basing his rationale on review of the Appellant’s military documents and other pertinent records, his history and the psychologist’s personal contact with the Appellant through a clinical interview. As previously mentioned, the Board remanded this matter in September 2019 to obtain private medical treatment records. The Board also remanded this matter to afford the Appellant a VA examination. Pursuant to the September 2019 Board remand, the Agency of Original Jurisdiction (AOJ) sent the Appellant a notification requesting the information needed to obtain additional private medical treatment records in November 2019. A representative for the VA subsequently spoke with the Appellant and he stated that he had no additional evidence or information to submit. Also pursuant to the September 2019 Board remand, a VA examination was conducted in January 2020. The January 2020 VA examiner confirmed the diagnoses of PTSD, recurrent and severe major depressive disorder, and insomnia disorder. The examiner opined that the Appellant’s psychiatric disorders are less likely than not incurred in or caused by the period of ACDUTRA. The examiner provided the rationale that there is no evidence to corroborate his self-reported trauma during basic training, and there is no evidence that he sought psychiatric treatment while on active duty, only years after discharge. The examiner was specifically asked to reconcile/differentiate his opinion/findings from other findings on file. To that end, the examiner noted that his diagnostic conclusions are the same as the Appellant’s private physician. However, the examiner did not address the positive nexus opinions in the psychological updates from the private psychologist. This error significantly diminishes the probative value of the January 2020 opinion. The Board finds that the psychological reports from the private psychologist are based on a thorough review of the Appellant’s medical treatment record and his psychiatric disorder and detailed psychological analyses were provided. Therefore, the remaining issue before the Board is whether there is credible supporting evidence that the claimed stressful events, which were asserted by the Appellant and considered by the Veteran’s private psychologist in his evaluations, occurred. Based on the review of the evidence, and resolving reasonable doubt in the Appellant’s favor, the Board finds that it is as likely as not that the claimed stressor occurred. The Board notes that the service treatment records (STRs) are silent as to a diagnosis, complaints, or symptoms of a psychiatric disorder. A June 2013 VA memorandum contains a formal finding of lack of information required to corroborate stressor(s) associated with a claim for service connection for PTSD. The Board also notes that lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Appellant has submitted statements with his assertions of stressors occurring during his period of ACDUTRA and the onset of his psychiatric symptoms. Additionally, his family submitted lay statements noting changes in his behavior, personality, and interaction with them when he returned from basic training. In sum, the Board finds that the evidence presently before the Board is sufficient to grant the appeal as the Appellant has been diagnosed with an acquired psychiatric disorder, and the evidence is at least evenly balanced as to whether the Appellant endured in-service stressful event(s) during his period of ACDUTRA and as to whether his psychiatric disorder is related to such in-service stressful event(s). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Appellant, entitlement to service connection for an acquired psychiatric disorder, variously classified, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.