Citation Nr: 21004376 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-21 332 DATE: January 27, 2021 ORDER Service connection for an acquired psychiatric disorder (diagnosed as dysthymic disorder, anxiety disorder, and alcohol use disorder), other than a posttraumatic stress disorder, is granted. REMANDED The issue of service connection for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The Veteran’s acquired psychiatric disorder (diagnosed as dysthymic disorder, anxiety disorder, and alcohol use disorder) had its onset in service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder (diagnosed as dysthymic disorder, anxiety disorder, and alcohol use disorder), are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from April 2004 to August 2004; he served on active duty from March 2006 to June 2006 and May 2009 to June 2010. He received the Combat Infantryman Badge, among many other decorations. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2015 rating decision, the RO originally denied service connection for PTSD. Although the Veteran did not submit a notice of disagreement as defined in 38 C.F.R. § 20.201, he submitted new and material evidence, to include a statement from a psychiatrist and a lay statement, prior to the expiration of the one-year appeal period. This resulted in the claim remaining pending. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). In December 2020, the Veteran and his mother presented testimony before the Board. During the hearing, the Veteran’s request for the record to be held open for an additional 30 days to allow him to submit additional evidence was granted. The issue of service connection for an acquired psychiatric disorder has been expanded and recharacterized in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran asserts that his acquired psychiatric disorder is due to his combat service in Iraq and Afghanistan and that he has had psychiatric symptoms in and since service. See, e.g., Board hearing transcript (December 2020). Specifically, he attributes his acquired psychiatric disorder symptoms to his deployment in Afghanistan and Iraq, when he witnessed enemy and civilian casualties and detonation of improvised explosive devices (IEDs); and his combat engagement with the enemy. See VA examination report (February 2017). For the following reasons, service connection for an acquired psychiatric disorder, specifically a dysthymic disorder, anxiety disorder, and alcohol use disorder, is warranted. The evidence shows current acquired psychiatric diagnoses, namely dysthymic disorder, anxiety disorder, and alcohol use disorder. See VA examination report (February 2017). Therefore, the current disability element is met. The Veteran’s service records and DD Form 214 shows that he served in Iraq and Afghanistan and that he received the Combat Infantryman Badge for his direct fire contact with the enemy. See, e.g., Department of the Army letter (February 2010). In the case of a veteran who engaged in combat with the enemy in active service during a period of war, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C. § 1154(b). As the Veteran reported that he experienced psychiatric symptoms during service, due to his combat service, the in-service disease or injury element is met. Id. The remaining question is whether the Veteran’s acquired psychiatric disorder is due to his combat military service or whether it had its onset in during service. In a September 2015 letter, Kacy Mullen, a psychologist, indicated that the Veteran had sought psychiatric treatment since 2014 and that he had symptoms of PTSD due to his combat stressors, such as witnessing dead enemy combatants, during his deployment in Afghanistan and since his separation from service. The Veteran reports that he has had psychiatric symptoms, such as panic attacks and social withdrawn, in and since service. See Board hearing transcript (December 2020). During the Board hearing, the Veteran’s mother testified that prior to the Veteran’s military service, he did not have psychiatric symptoms; however, during service and since service the Veteran experienced psychiatric symptoms, such as panic attacks and social withdrawal. The Veteran is competent to testify regarding continuous symptoms since service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Veteran’s mother’s statements regarding witnessing the Veteran’s psychiatric symptoms since service is competent, as she is competent to report factually observable the timing of the observable symptoms of a disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although there are VA opinions, to include a February 2017 VA medical opinion, that found that the Veteran’s acquired psychiatric disorder was less likely than not due to his military service, the opinions are afforded little probative value, as the opinion providers did not consider the Veteran’s or the Veteran’s mother reports of the Veteran’s psychiatric symptoms in and since service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). In sum, the Board finds the most probative evidence is that of the Veteran’s and his mother’s statements and the September 2015 psychologist’s statements regarding the Veteran’s psychiatric symptoms in and since service. Accordingly, resolving any reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s acquired psychiatric disorder had its onset in service. Service connection for an acquired psychiatric disorder (diagnosed as dysthymic disorder, anxiety disorder, and alcohol use disorder), is warranted. REASONS FOR REMAND The issue of service connection for PTSD is remanded. The Veteran seeks service connection for PTSD; the current evidence of record shows no diagnosis of PTSD. During the December 2020 Board hearing, the Veteran reported that he was treated for PTSD while he was in the Army National Guard in September 2019 and that he was diagnosed as having PTSD during a Vet Center visit. The Veteran’s reported treatment records have not been associated with the record. Therefore, a remand is necessary to obtain outstanding treatment records regarding the Veteran’s PTSD treatment. The matter is REMANDED for the following action: 1. Obtain and associate with the record Army National Guard from September 2019, regarding any treatment for PTSD. 2. Obtain and associate with the record VA treatments from 2017, as well as Vet Center records. (Continued on next page) 3. Conduct any other indicated development, including a VA examination if warranted following the above development. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.