Citation Nr: 21062499 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 18-18 964 DATE: October 7, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety, is granted. REMANDED The claim of entitlement to service connection for degenerative arthritis of the cervical spine, status post anterior cervical discectomy and fusion, is remanded. FINDING OF FACT The Veteran's psychiatric disability, to include depression and anxiety, is related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety, 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 (AD) from December 1969 to August 1971. Thereafter, he served as a Reservist, including on periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). His claims come before the Board of Veterans' Appeals (Board) on appeal of a June 2015 Department of Veterans Affairs (VA) rating decision. In June 2021, the Veteran and his spouse testified in support of these claims at a video conference hearing held before the undersigned Veterans Law Judge. In recharacterizing the mental health claim on appeal, the Board recognizes that when a claimant files a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the file includes multiple psychiatric diagnoses, necessitating a recharacterization of the initial, narrowly characterized claim. Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety The Veteran claims entitlement to service connection for a psychiatric disability that manifests as depression and anxiety. He seeks this benefit on a direct basis as related to a period of AD. He contends that in March 1988, he was called to AD and deployed to Honduras with the 315th Supply and Support Unit, which was attached to the 82nd Airborne Unit; as it was a time of unrest, and he was stationed in a combat zone, he was very scared of hostile military and terrorist activity. While there, he reportedly witnessed traumatizing incidents, including: (1) Honduran soldiers being disciplined and treated brutally; (2) an execution during which a man was shot in the head for stealing a car and causing an accident that killed a girl; and (3) helicopters on base catching fire while "hot fueling". He asserts that, in Honduras, his depression and anxiety developed and he began having sleepless nights, bad dreams and nightmares. He further asserts that, subsequently, after returning to the Dover Air Force base, he worked in mortuary affairs for one or two years, which made it even more difficult for him. He identified and processed deceased personnel, observed their bodies after autopsies or other procedures, took their personal effects and placed these items in their caskets. During his hearing, the Veteran pointed out that the record includes all evidence needed to satisfy the three criteria of a service connection claim, including a favorable opinion linking his depression and anxiety to his service in Honduras. The evidence indeed supports this claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. "Active military, naval or air service" includes: (1) AD; (2) any period of ACDUTRA during which an individual became disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which an individual became disabled or died from an injury incurred or aggravated in the line of duty, or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24). Reserve and National Guard service generally involves ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training that each Reservist or National Guardsman must perform each year, or the Reservist's or Guardsman's initial period of training. 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). Here, as asserted, the Veteran satisfies all elements of a service connection claim. First, he has a current psychiatric disability that has been variously diagnosed during the course of this appeal, including as depression, anxiety, major depressive disorder, other specified trauma and stressor-related disorder and post-traumatic stress disorder (PTSD) (already service connected). Second, as the Agency of Original Jurisdiction (AOJ) conceded in a separate claim, the Veteran experienced injurious in-service events during a period of ACDUTRA in 1988. According to his service personnel records, he served in Honduras for approximately two weeks in March 1988 as part of Operation Golden Pheasant. This operation was billed as a training exercise (annual training) with the intent of discouraging Nicaraguan forces from invading Honduras; however, the troops who deployed to Honduras were prepared to fight if necessary. This potential for combat would explain the Veteran's reported fear of hostile activity while in Honduras. Also, the Veteran is competent to report witnessing a lay-observable execution while there, and there is no evidence of record to suggest that his reports in this regard are not credible. The Veteran also reported mentally damaging incidents while serving in Dover, Delaware; however, he did not indicate that any particular incident occurred during a period of active service, to include AD, ACDUTRA or INACDUTRA. Instead, he indicated that the incidents occurred over a period of time when he worked in mortuary affairs. Third, two medical professionals have linked the Veteran's psychiatric disability to his service. In December 2015, a psychiatrist acknowledged the Veteran's history of mental health issues, including depression and anxiety, and service in Honduras, including the reported, traumatizing events, evaluated his mental health, and in a comprehensive report, found his other specified trauma and stressor-related disorder at least as likely as not incurred in or caused by his military service, including a fear of hostile military or terrorist activities. In support of his opinion, the psychiatrist cited to the record and provided rationale. In September 2020, a VA examiner too linked the Veteran's psychiatric disability to his active service. He specifically found that symptoms of the Veteran's PTSD, to include anxiety (also mentioned depression earlier in report), were related to seeing people killed (Honduras) and dealing with dead bodies (mortuary affairs) in service. He concluded that PTSD is at least as likely as likely as not incurred in or caused by stressors in Honduras and with graves' registration. As the Veteran's psychiatric disability is related to a period of active service, the criteria for entitlement to service connection for this disability are met. REASONS FOR REMAND Entitlement to service connection for degenerative arthritis of the cervical spine, status post anterior cervical discectomy and fusion The Veteran seeks service connection for a neck disability on a direct basis as related to injuries he sustained during active service. He testified that he injured his neck twice in service, once during AD in Germany, when he slipped and fell off a 5,000-gallon tanker onto the ground, hitting his back and head, and again in August 1979, during a period of INACDUTRA in Dover, Delaware, when, as a 125- or 130-pound soldier, he was pulling 10 to 12 feet, 8 to 10 pound hoses over his head. He claims the second injury aggravated the back pain and pinching he had been feeling since the first injury. He asserts that he has continued to experience neck symptoms since the initial injury, despite undergoing surgery on his cervical spine in the 1990s or early 2000s. Service treatment records confirm complaints of neck pain in August 1970, when the Veteran was stationed in Germany on AD. Post-service treatment records confirm that the Veteran currently has a neck disability that has been variously diagnosed during the course of this appeal. In December 2015, a physician submitted a statement indicating that the Veteran had been treated at her facility for cervical spinal cord compression. This physician found that, although one cannot say exactly how long this condition existed prior to its diagnosis or definitely its cause, it is as likely as not that the neck condition causes, contributes to or aggravates his current neck condition. In January 2016, she clarified that it is as likely as not that the in-service neck injury causes, contributes to or aggravates his current neck condition. This opinion is inadequate as it is not supported by evidence, medical literature and/or rationale. To date, VA has not afforded the Veteran a VA examination, during which an examiner can address whether the current neck disability is related to the neck pain or otherwise to the Veteran's active service. This matter is REMANDED for the following action: Afford the Veteran a VA cervical spine examination. The examiner should review the Veteran's file, including: (a) service personnel records showing the capacities in which the Veteran served during AD in Germany in 1970 and INACDUTRA in August 1979; (b) service treatment records showing he complained of neck pain during AD; (c) his hearing testimony describing neck injuries he sustained during AD and INACDUTRA and why he believes they are related to his current neck disability; and (d) post-service treatment records showing variously diagnosed cervical spine disabilities and post-service neck surgery. The examiner should record in detail the Veteran's history of in-service and post-service neck injuries, symptoms and surgeries. (Continued on the next page) Accepting as competent the Veteran's reports of lay-observable neck symptoms, the examiner should opine whether the Veteran's currently diagnosed neck disability is at least as likely as not (50 percent or greater probability) related to a period of active service (AD, ACDUTRA or INACDUTRA), including the neck pain documented during AD and/or the neck injuries reported to have occurred during AD (1970) and INACDUTRA (1979). The examiner should provide rationale for the opinion. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. N. 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.