Citation Nr: 21005049 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-50 176 DATE: January 28, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder to include depression, insomnia disorder and posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran’s acquired psychiatric disorder to include depression, insomnia disorder and PTSD is related to his in-service stressors from service in Vietnam. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder to include depression, insomnia disorder and PTSD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Air Force from August 1970 to November 1974, including service in Vietnam; and January 1991 to June 1991, including service in support of Operation Desert Shield/Storm from January 29, 1991 to June 5, 1991; and from August 18, 1990 to November 30, 1990. This matter comes to the Board of Veterans’ Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) dated in December 2015, which, in pertinent part, denied service connection for PTSD. In September 2018, the Board, in pertinent part, reopened the service connection claim for PTSD, finding that new and material had been received to reopen the claim; but remanded the claim on the merits (recharacterizing the matter as entitlement to service connection for an acquired psychiatric disorder to include PTSD, insomnia disorder, and depressive disorder). The case is now returned for appellate review. 1. Entitlement to service connection for an acquired psychiatric disorder to include depression, insomnia disorder and posttraumatic stress disorder (PTSD) The Veteran contends that he has PTSD due to combat conditions in Vietnam. Specifically, he related being exposed to combat and mortar attacks in Vietnam. See, e.g., March 2011 claim. 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 for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). If the evidence establishes 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). The Board concludes that the Veteran has a current disability that is related to in-service injury combat stressors. 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). An August 2019 VA psychiatrist shows the Veteran has a current diagnosis of PTSD. Service treatment records do not show any psychiatric treatment. However, personnel records show that the Veteran served in Vietnam, and earned, in pertinent part, the Republic of Vietnam Gallantry Cross with Device and Vietnam Campaign Medal. He also served in Operation Desert Shield/Storm from January 29, 1991 to June 5, 1991; and from August 18, 1990 to November 30, 1990. It is consistent with the circumstances of his military service that he would have been exposed to a combat environment during his service in Vietnam and Southwest Asia. Thus, even though there is no evidence of in-service treatment for a psychiatric disability, the Veteran’s lay statements alone may establish the occurrence of the claimed in-service stressor. The question becomes whether the current disability is related to his combat experiences in service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a December 2015 VA medical opinion, which found that the Veteran did not have a psychiatric disorder related to military service. It was noted that the Veteran had been referred for mental health services in 1974 with an alleged history of verbal and physical abuse toward his wife, but there was no documentation of a psychiatric diagnosis in service or in medical records dated in the 1980s, or any psychiatric treatment records afterward. Historically, a VA examination provided in July 2011 also was negative for PTSD. After the Board remanded the case in September 2018, a VA examination report was provided in September 2019. The examiner found that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria. It was noted that he met the stressor criteria for PTSD but not the symptoms criteria, as he did not have persistent reexperiencing of the traumatic event, avoiding reminders of the trauma, nor increased anxiety and emotional arousal. The examiner diagnosed the Veteran with cannabis use disorder and cannabis induced mood disorder; and found that the Veteran’s diagnoses were not due to, related to, or incurred in or associated in any way with military service. The examiner found that the cannabis use disorder and cannabis induced mood disorder were the product of the Veteran’s own and willful misconduct. An addendum opinion was requested in June 2020 for the examiner to consider the Veteran’s treatment for clinical diagnoses of major depressive disorder, anxiety disorder, and trauma and stressor-related disorder from August 1996 to April 2001 and from August 2002 to present. The examiner reviewed the Veteran’s past psychiatric treatment and noted that the service treatment records were still silent for any mental disorder. The examiner noted that the Veteran began cannabis use in 2017 and that this was a very potent psychoactive substance capable of mimicking any psychiatric or psychologic symptom. The examiner further found that the Veteran’s insomnia was a part of his cannabis-induced mood disorder. Thus, the examiner determined that the diagnosis was still the same as noted on the past VA examination. The evidence in favor of the claim includes an August 2019 VA psychiatrist clinical evaluation, which found that the Veteran had a diagnostic impression of PTSD chronic, major depressive disorder, recurrent moderate; and unspecified neurocognitive disorder. It was noted that the Veteran had suicidal-related behavior including a suicidal gesture of holding a gun five years ago; his wife took the gun away. The Veteran reported a long-standing psychiatric history due to changes in mood, behavior, and sleep disturbances after Vietnam. He also complained about progressive memory and cognitive deficits. He stated that he had episodes of anxiety and chronic insomnia, and described sadness and lack of energy, mostly related to pain. It was noted that he reported sleeping better with medicinal cannabis. He denied any current use of alcohol, tobacco, or any other illicit substances, except for medicinal cannabis. The diagnostic impression was that the Veteran had symptoms suggestive of trauma. A July 2019 VA treatment record also notes that a VA psychiatrist found that the Veteran exhibited chronic PTSD, as evidenced by traumatic memories, flashbacks, nightmares, trust, safety, and power/ control issues, and hypervigilance. In addition, historically, VA treatment records dated in October 2000 and November 2000 showed a diagnosis of PTSD (subclinical) from a VA psychiatrist due to the Veteran’s reported symptoms after service in Kuwait with explosions and sniper and terrorist attacks. The Veteran also noted on VA treatment records dated in November 2000 that he had difficulty sleeping and disturbing nightmares regarding Vietnam. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current acquired psychiatric disorder to include depression, insomnia disorder and PTSD is related to service. While the VA examiner in September 2019 and June 2020 found that the Veteran had a cannabis use disorder that was due to willful misconduct and not related to service, additional treatment records dated in August 2019 show that the Veteran was prescribed medicinal cannabis to help with sleep, rather than any illicit use. (Continued on the next page)   Given that the record shows a current diagnosis of chronic PTSD, and major depressive disorder from a VA psychiatrist; and the Veteran has reported a history of changes in mood, behavior, and sleep disturbances since Vietnam, after resolving all doubt in favor of the Veteran, the Board finds that service connection for acquired psychiatric disorder to include depression, insomnia disorder and PTSD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.