Citation Nr: 21061891 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-15 553 DATE: October 5, 2021 ORDER The claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, is granted. FINDING OF FACT The Veteran's acquired psychiatric disorder is at least as likely as not related to his active duty combat service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service from May 1965 through September 1965 and from January 1968 through June 1969, to include service in Vietnam from June 1968 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Veteran's claim has been broadened to encompass any acquired psychiatric disorder, to include PTSD and depressive disorder. See January 2013 claim applications. In January 2019, the Board remanded this matter to the RO for additional development, to include obtaining the Veteran's service personnel records. The Board concludes that while there has been only partial compliance with its remand directives (an updated examination should have been obtained after additional service personnel records were located), as the Board is granting the Veteran's claim in full, there is no prejudice to the Veteran in proceeding based on the evidence of record. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.902(c). 1. The claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder. The Veteran contends that he has a psychiatric condition related to his active service. 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). As to claims made by combat veterans, VA 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. The combat presumption may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Service connection for PTSD, specifically, requires: (1) medical evidence establishing a clear diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and the in-service stressor. 38 C.F.R. § 3.304(f). In PTSD claims, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by military records and all pertinent medical and lay evidence. See Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, having considered the evidence of record, the Board concludes that the Veteran has a current acquired psychiatric disability that is related to his 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). The Veteran has a currently diagnosed psychiatric condition. Specifically, during the period on appeal, the Veteran has been assessed with depressive disorder and PTSD. See e.g., 2013 Vet Center treatment records; February 2016 VA examination. The Veteran's symptoms include depressed mood, chronic sleep impairment, and anxiety, among others. Next, the Board finds credible evidence that the Veteran suffered in-service psychiatric trauma. The Board acknowledges that the Veteran's service treatment records (STRs) and his separation reports of medical examination and history are silent for complaint or treatment of psychiatric symptoms; however, military personnel records obtained on remand confirm that the Veteran had combat service in Vietnam. Even without access to the Veteran's complete service personnel records, the February 2016 VA examiner noted that the Veteran's claimed in-service stressor (fear of hostile military or terrorist activity) was adequate to support a PTSD diagnosis. Given his confirmed combat service, the Board will evaluate the Veteran's claim under the combat presumption, which is intended to lighten the evidentiary burden of a veteran who claims a disease or injury was incurred in or aggravated by combat service. See Jensen v. Brown, 19 F.3d 1413, 1416-17 (Fed. Cir. 1994). In such cases, a "three-step sequential analysis determines whether a combat veteran is entitled to service-connection." First, the Veteran must offer satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease. Second, this evidence must be consistent with the circumstances, conditions, or hardships of the Veteran's service. Third, and only if the first two steps are met, the government can rebut the presumption of service-connection by clear and convincing evidence to the contrary. See Dambach v. Gober, 223 F.3d 1376, 1380 (Fed. Cir. 2000). In other words, if the first two steps are met, VA "shall accept" the Veteran's evidence as "sufficient proof of service-connection," even if no official record of such incurrence exists. In such cases, a factual presumption arises that the alleged injury or disease is service connected. See Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996). The Board finds there is satisfactory evidence of exposure to and incurrence of psychiatric trauma during the Veteran's service and that this evidence is consistent with the circumstances, conditions, or hardships of the Veteran's service. According to a 1968 Airman Performance Report, the Veteran's security duties included assignment as "a distant perimeter guard machine gunner on mobile units and entry controller." The Veteran was noted to have worked "in the capacity of a forward observer, [maintaining] constant surveillance of all avenues of approach to the base within his area of responsibility." He received hostile fire pay for his combat zone service. Included in the Veteran's service personnel records is the citation accompanying the Veteran's award of the Air Force Commendation Medal, which states that the Veteran, "displayed outstanding courage and devotion to duty during hostile attacks" and noted that he was "often subject to small arms fire." During his therapeutic services at the Vet Center in 2013, the Veteran shared his frustration with coping with memories of Vietnam and reported having difficulty relaxing and calming his hyperarousal in certain situations. He reported guilt relating to his experiences in Vietnam, among other symptoms and emotions. These records specifically refer to the Veteran's traumatic experiences while in Vietnam as relating to his current mental functioning. These symptoms match those the Veteran reported to the August 2013 VA examiner, including the Veteran's report that he threw away his medals upon his return from Vietnam. Additionally, the Veteran reported that after his return from Vietnam, his wife told him he would "just sit up in bed and yell." The Board further finds that the above evidence has not been rebutted by clear and convincing evidence. The Board acknowledges that the August 2013 VA examiner did not identify a current psychiatric disorder and that the February 2016 VA examination did not diagnose PTSD or conclude there was a link between the Veteran's service and his depressive disorder; however, the Board finds these examinations inadequate. Neither examiner had access to the Veteran's full personnel records and neither examiner adequately addressed the Veteran's lay report of symptomatology following his service and as currently experienced. Thus, while the Veteran has not received an adequate VA examination and was not referred for an updated examination on remand, the Board nevertheless concludes that the existing medical evidence of record provides an adequate basis to find a nexus between the Veteran's active service and his current psychiatric condition. 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 PTSD and depressive disorder, is etiologically related to his active service, to include his combat service in Vietnam. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, Associate 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.