Citation Nr: 21003048 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-01 991 DATE: January 19, 2021 ORDER Service connection for an acquired psychiatric disorder is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s current acquired psychiatric disorder was incurred in or caused by active military service. CONCLUSION OF LAW The criteria for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1989 to February 1993. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at a Board hearing. The transcript of the hearing has been associated with the record. The Board remanded this matter for further development in October 2018 and April 2020. The Veteran contends that his psychiatric problems started after returning from Southwest Asia in April 1991, specifically the experiences of being in a foxhole as a “Daisy Cutter” bomb was dropped and being pushed out of a moving truck by a fellow service member. 11/08/2019, C&P Exam; 07/11/2018, Hearing Transcript; 08/30/1996, Medical Treatment Record (MTR)–Government Facility (GF). The evidence is at least in equipoise as to whether the Veteran has an acquired psychiatric disorder that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for a psychiatric disorder requires medical evidence to diagnose the disorder per the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5) (or where, as here, the appeal period is before August 4, 2014, the DSM-IV may be used), medical evidence to establish a medical link between the current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stress occurred. 38 C.F.R. §§ 3.304(f), 4.125(a). The absence of treatment shown within service treatment records is an insufficient rationale for a negative nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A VA examiner’s failure to consider the veteran’s testimony when formulating his or her opinion renders that opinion inadequate. Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Because a diagnosis of a psychiatric disorder requires specialized training, a Veteran cannot assess a diagnosis for himself. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. The record contains a competent diagnosis of an acquired psychiatric disorder manifested in anxiety, depression, and posttraumatic stress disorder (PTSD); accordingly, competent evidence of a current disability is found. 01/24/2020, CAPRI. The Veteran’s January 1989 enlistment examination indicates the Veteran was sound upon admission into the Army. The Veteran denied any issues, including nightmares or recurring thoughts of Desert Shield or Storm, in a July 1991 Southwest Asia demobilization/redeployment medical evaluation. He denied any nervous trouble in his July 1991 Report of Medical History. 11/12/2014, STR – Medical. The Veteran’s certificate of discharge indicates service in Southwest Asia from October 1990 to April 1991 with receipt of three Bronze Service Stars. 11/12/2014, DD 214. In June 1993, within a year after separation from service, the Veteran submitted a statement of his intention to apply for service connection for a nervous condition. 06/01/1993, VA 21-4138. The Veteran was admitted into a VA medical center from June 1993 to July 1993 because of his suicidal ideation. The examiner noted there was a question of whether a personality disorder was diagnosed in December of 1992. The Veteran contended he was having difficulty with flashbacks from the Gulf War of a “daisy bomb,” among some family issues. He noted he had crying spells for four months and a depressed mood for six months. The VA examiner diagnosed adjustment disorder with anxiety and depression. See 08/25/1993, MTR–GF. VA examiners in August 1993 diagnosed adjustment disorder with mixed disturbance of emotions and conduct, alcohol dependence, mixed personality disorder, eminent dependence, adjustment disorder with depressed mood, and not otherwise specified personality disorder with dependent, borderline, passive-aggressive, and schizoid features. 08/30/1996, MTR–GF. These diagnoses were not pursuant to the DSM criteria. A March 1994 VA examiner diagnosed mild PTSD pursuant to the DSM-III from trauma associated with time in Iraq. 03/24/1994, VA Examination. A separate VA examination diagnosed mild to moderate PTSD, but not pursuant to the DSM criteria. 03/26/1994, VA Examination. Medical records demonstrate consistent and ongoing treatment for mental health issues, with most treatments focused on anxiety disorder. See 04/26/2018, CAPRI; 05/31/2012, CAPRI; 04/26/2012, MTR–Non-GF; 11/07/2011, MTR–Non-GF. In March 2013, a VA examination found no evidence to diagnose a mental disorder under the DSM-IV criteria. The examiner observed significant exaggeration or feigning of symptoms; thus, finding it impossible to determine the Veteran’s symptoms without the use of mere speculation. See 03/07/2013, VA Examination. The Board found this examination to be inadequate in October 2018. In June 2014, a mental health clinic staff psychiatrist provided a letter confirming the Veteran does not have PTSD but is being treated for chronic anxiety and depression with no psychotic symptoms or suicidal ideation. 07/24/2014, Third Party Correspondence. A February 2019 VA examiner diagnosed unspecified anxiety disorder under the DSM-5 criteria. The examiner explained that the Veteran does not have symptoms necessary for a diagnosis of PTSD. She provided a thorough explanation as to how the PTSD diagnostic criteria under the DSM were not present. She explained that the Veteran did not meet any of the PTSD criteria. The examiner opined that the Veteran’s anxiety is related to his chaotic family relations over the years and found no objective evidence that the Veteran’s unspecified anxiety disorder was incurred during his active duty service. 02/07/2019, C&P Exam. The November 2019 VA examiner opined the Veteran’s history and clinical presentation is consistent with a diagnosis of unspecified anxiety and depressive disorder under the DSM-5 diagnostic criteria. The examiner found the psychiatric disorder is less likely than not proximately due to or the result of the veteran’s service-connected condition, noting the “Veteran has a history of reporting trauma related symptoms and anxiety which appear if anything more likely related to in service combat stressors than due to his service connected conditions.” 11/08/2019, C&P Exam. The Board found this rationale to be unclear in April 2020. VA treatment records demonstrate treatment for PTSD. A VA medical resident found the Veteran had poorly controlled PTSD in July 2019. A VA psychiatrist diagnosed unspecified depressive and anxiety disorder and PTSD under the DSM-5 in January 2020. 01/24/2020, CAPRI. An April 2020 VA examiner opined that the Veteran’s acquired psychiatric disorder is less likely than not caused by the service-connected left foot plantar fasciitis. The examiner did not find it possible to opine without resorting to mere speculation whether the serve-connected disability resulted in a significant aggravation of the PTSD and related symptoms of anxiety and depression. 04/22/2020, C&P Exam. A September 2020 VA examiner determined the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under the DSM-5 criteria, but he does meet the criteria for unspecified anxiety disorder and unspecific depressive disorder. The examiner explained the Veteran did not display the full diagnostic criteria, but he has been diagnosed and treated over the years for anxiety, depression, and “sub-clinical PTSD.” 09/23/2020, C&P Exam. In October 2020, the September 2020 VA examiner provided the opinion that it was less likely than not that current unspecified anxiety and disorder was incurred in or caused by service or an in-service trauma as there was no clear or direct evidence in the service treatment records that current anxiety and depression were due to an in-service event. The examiner stated the Veteran reported an in-service trauma in 1990 of being in a foxhole while bombs were being dropped but determined the Veteran did not receive any mental health treatment until 2005, approximately 15 years after the reported in-service trauma. 10/12/2020, C&P Exam. The Board finds the September 2020 VA examiner’s medical opinion inadequate as it is based on inaccurate facts. The record demonstrates the Veteran received mental health treatment as early as June 1993, not 2005 as the September 2020 examiner specified. See Stefl, 21 Vet. App. at 124. Four VA examiners provided inadequate opinions regarding the etiology of the Veteran’s acquired psychiatric disorder with notice and solicitation of the adequacy requirements. Still, all five opinions during the period on appeal were nevertheless inadequate as they either failed to consider the entirety of the record or provide an opinion as to whether the Veteran’s acquired psychiatric disorder is at least as likely as not incurred in or caused by service or an in-service trauma. See id.; Nieves-Rodriguez, 22 Vet. App. at 304; Buchanan, 451 F.3d at 1337. The Veteran has described experiencing trauma during deployment in Southwest Asia. The record confirms his service in Southwest Asia with the receipt of three Bronze Service Stars. Inasmuch as the sole basis for the negative nexus opinions on a direct basis is the lack of in-service evidence of complaints of mental health issues or trauma, it is reasonable to assume that had the examiners considered the totality of the record, they would have provided a positive nexus. Again, the Veteran perfected this appeal five years ago, and both the Board and RO have attempted on numerous occasions to have the VA examiners consider all of the evidence of record or provide an opinion as to the etiology on the theory of direct service connection. With consideration of the totality of the relevant evidence, the competent and probative lay and medical evidence are at least in equipoise as to whether the current acquired psychiatric disorder had its onset in or is otherwise related to the Veteran’s period of active service. Any doubt on the material issue of nexus is resolved in the Veteran’s favor, and the claim of service connection for an acquired psychiatric disorder is granted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.