Citation Nr: 21001479 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-54 413 DATE: January 8, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder which is characterized with posttraumatic stress disorder (PTSD), depressive disorder, anxiety disorder, and a secondary substance abuse disorder is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Army from December 1973 to March 1976. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho (hereinafter Agency of Original Jurisdiction (AOJ)). The Board initially notes that service connection claims for depression were denied in final AOJ rating decisions in June 2005 and February 2012. In support of this claim, the Veteran has submitted a diagnosis of PTSD not previously considered with opinion linking PTSD and depression to military service. As such, the Board may review this claim on the merits. See generally 38 C.F.R. § 3.156(b) The appeal is remanded to the. VA will notify the Veteran if further action, on his part, is required. 1. Entitlement to service connection for an acquired psychiatric disorder which is characterized with PTSD, depressive disorder, anxiety disorder, and a secondary substance abuse disorder is remanded. The record reflects that the Veteran has been receiving treatment for PTSD, depressive disorder, anxiety, and alcohol dependence. He has submitted medical evidence attributing his PTSD to military duties in Germany during the Cold War being on alert to fire nuclear weapons in the event of an attack by Russia. His clinician listed this state of events as a “traumatic” event. Service connection for PTSD has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-5); (2) credible supporting evidence that the claimed in service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). If it is established through military citation or other supportive evidence that the veteran engaged in combat with the enemy and the claimed 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 the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). See also 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the Veteran engaged in combat). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C. § 1154(b) requires that the veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran’s lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the veteran’s testimony or statements. 38 C.F.R. § 3.304(f); Stone v. Nicholson, 480 F.3d 1111 (Fed. Cir. 2007); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). However, corroboration of every detail of a claimed stressor, including the veteran’s personal participation, is not required; rather, a veteran only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure. See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (quoting Suozzi v. Brown, 10 Vet. App. 307 (1997)). The final requirement of 38 C.F.R. § 3.304(f) is medical evidence of a nexus between the claimed in-service stressor and the current disability. However, such after-the-fact medical nexus evidence generally cannot also be the sole evidence of the occurrence of the claimed stressor. Moreau, 9 Vet. App. at 396. Effective July 13, 2010, if a stressor claimed by a veteran is related to that 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 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. The AOJ had determined that there is an inadequate stressor as his feat of a potential attack was insufficient as no event actually happened and there was no evidence that the Veteran was in a war zone or engaged in combat with the enemy. However, the definition of fear of hostile military activity only requires being confronted with circumstances that involve the threat of injury. Additionally, whether an event is sufficiently traumatic to induce PTSD is a medical determination. As such, the Board finds that the low threshold has been met for medical examination and opinion. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The matters are REMANDED for the following action: 1. Associate with the claims folder updated VA treatment records as well as complete records from the Vet Center. 2. The Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his acquired psychiatric disorder. The claims file must be made available to and be reviewed by the examiner. The examiner should indicate all psychiatric disorders manifested since service, to include the diagnoses of PTSD, depressive disorder, anxiety disorder, and alcohol dependence noted in clinical records. The examiner is requested to discuss whether the previously diagnosed conditions were proper and currently asymptomatic, or a misdiagnosis. The examiner should specifically indicate whether the Veteran has an acquired psychiatric disorder, to include PTSD, depressive disorder, anxiety disorder, and alcohol dependence and provide an opinion as to whether each diagnosed disability is at least as likely as not (50 percent or greater probability) occurred in or is otherwise etiologically related to the Veteran’s military service. If PTSD is diagnosed, the examiner should identify the stressors supporting the diagnosis. The examiner should consider the following: • the Veteran’s service treatment records reflecting treatment for excessive alcohol intake, his separation examination wherein he denied frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort, and his unsuitability discharge due to alcoholism; • the Veteran’s VA treatment in 2004 noting that stressors were causing depression (insomnia, negative thinking, worry, low interest and motivation); • a November 2011 statement from the Veteran claiming continuing depression related to his military service; • the Veteran’s January 2012 statement reflecting his belief that he self-treated severe depression with alcohol use during service; • Vet Center records diagnosing complex PTSD, depression and anxiety noting the traumatic stressor as cold war activities while stationed in Germany including the May 2017 Medical Treatment Record - Government Facility, letter from Bart Emigh MA, Pocatello Vet Center; • the Veteran’s military personnel records; • the May 2017 VA 21-0781, Statement in Support of Claim for PTSD wherein the Veteran described his in-service stressors; • the February 2016 VA 21-4138 Statement in Support of Claim; and • the September 2016 Medical Treatment Record - Government Facility, which discuss nightmares, depression, and anxiety; The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.