Citation Nr: 21062626 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 15-37 752 DATE: October 8, 2021 ORDER Service connection for an acquired psychiatric disorder is granted. FINDINGS OF FACT 1. The Veteran had active service from May 1963 to December 1966. 2. An acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD), adjustment disorder with mixed anxiety and depressed mood, is etiologically related to service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, adjustment disorder with mixed anxiety and depressed mood, was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.102, 3.303(a), 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2017. A transcript of that hearing has been associated with the claims file. The Board previously denied the Veteran's claim for service connection for an acquired psychiatric disorder in August 2018. The Veteran appealed the decision to the Veterans' Claims Court. In September 2019, the Court Clerk granted a Joint Motion for Remand (JMR). The Board again denied the claim in August 2020. The Veteran again appealed the decision to the court. In March 2021, the Court Clerk granted another JMR. The appeal is again before the Board. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The requirements for establishing service connection for PTSD are more specific than those for establishing service connection for other psychiatric disabilities. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). Under 38 C.F.R. § 3.304 (f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such include but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counselling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Under 38 C.F.R. § 3.304 (f)(5), VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD, adjustment disorder with mixed anxiety and depressed mood as it is related to in-service personal assaults. Specifically, in July 2013, October 2013, and October 2015 lay statements, as well as in April 2017 testimony before the undersigned, he stated that he experienced racism which manifested in longer work hours, dirtier jobs, extra hours, racial epithets, delayed promotions, harassment, and threats to his physical safety which caused him to experience symptoms of anxiety and hyperventilation. As an initial matter, the Veteran has been diagnosed with an acquired psychiatric disorder. Specifically, September 2013 and August 2015 VA examinations diagnosed an adjustment disorder with mixed anxiety and depressed mood. A June 2020 private psychiatric evaluation diagnosed PTSD and major depressive disorder. Therefore, a current acquired psychiatric disorder has been shown and the first element of service connection has been met. As to a medical link between current symptoms and the claimed in-service stressor, a September 2013 VA examiner diagnosed an adjustment disorder and concluded that it was as likely as not related to repeated incidents of in-service racial discrimination. The examiner explained that the Veteran had difficulty adjusting to perceived racial discrimination and that the incidents resulted in continued psychiatric treatment. However, while the examiner relied upon the Veteran's report regarding the claimed in-service incident, the examiner noted that the Veteran's Structured Inventory of Malingered Symptomatology (SIMS) test score significantly exceeded the clinically relevant cutoff score of 14 and provided objective evidence of over-reporting or exaggeration of symptoms. Accordingly, the September 2013 VA examination is of lesser probative value. Further review of the record reveals that an August 2015 VA examination diagnosed adjustment disorder with mixed anxiety and depressed mood and opined that the Veteran's adjustment disorder was less likely caused by or a progression of the symptoms of anxiety and hyperventilation that were noted in-service. The examiner explained that there were other intervening factors that impacted the Veteran's mood, amount of sleep, and anxiety level, including his cardiac workup, pacemaker, his retirement, and his feelings of unproductivity. The examiner noted that the Veteran said that he had no incapacitating anxiety since his discharge and opined that his current anxiety and depression could not be directly linked to the in-service occurrence of anxiety. This examination report has been challenged and was questioned in the JMR; however, the examiner completed the compensation and pension form, provided a diagnosis, related the Veteran's medical history, described his symptoms, reviewed the claims file, including the service treatment records and civilian medical records, described the Veteran's past medical and work history, and described the symptoms after a mental status examination. Other than a non-favorable finding and a vague reference to counsel raising the issue of whether it was adequate, the JMR was not clear on how the examination was inadequate given the findings above which were present on the face of the document. Therefore, the Board's reliance on it is appropriate. On the other hand, the Veteran submitted a June 2016 private medical examination diagnosing PTSD and major depressive disorder and an April 2017 private medical opinion opining that his PTSD was more likely than not related to trauma secondary to in-service racial discrimination and physical violence. However, the June 2016 clinician failed to opine as to the relationship between the Veteran's diagnoses and service and the April 2017 clinician offered no explanation or underlying rationale, nor any indication as to how he reached his conclusion. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Therefore, the June 2016 private medical examination and the April 2017 private medical opinion are also of lesser probative value. The JMR did not appear to have any issue with these findings. [start here] Next, the Veteran submitted a June 2020 private psychological evaluation report. After reviewing the claims file and interviewing the Veteran, the clinician diagnosed the Veteran with PTSD and major depressive disorder and opined that his PTSD was at least as likely as not inextricably linked with his military service. The clinician explained that the Veteran experienced on-going racial harassment and intimidation when in the U.S. Navy, including when he was physically assaulted and sustained a serious injury to his left arm when he was in Central Park in New York. He noted that per DSM V PTSD criteria, the Veteran experienced identifiable specific in-service index traumas (PTSD criterion A); in 1964 while in the military and attired in his U.S. Navy uniform, he was the victim of a physical assault and injury in Central Park in New York that required hospitalization for seven months. Additionally, the clinician noted that the Veteran "repeatedly experienced chronic racism, racial harassment, and imminent threats to his physical safety" and he "felt trapped without a means of escape from racial harassment, he felt betrayed in as much as he was rejected and targeted by fellow U.S. Navy seamen, and he experienced a loss of control and disempowerment." For the reasons explained above, the probative value of the negative nexus opinions from the September 2013 and August 2015 examiners are outweighed by the positive nexus opinion in the June 2020 private medical opinion. Accordingly, a nexus between the current acquire psychiatric disorder, to include PTSD, adjustment disorder with mixed anxiety and depressed mood, and the in-service personal assault is established. Next, as to credible evidence that the claimed in-service stressor occurred, review of the service treatment records (STRs) reveal that in August 1964, the Veteran was treated for an injury sustained when he was pushed through a fence in Central Park in New York. In a December 1965 medical record, the Veteran complained of dizziness, lightheadedness, and a recurring backache, and was diagnosed with symptoms typical of anxiety and hyperventilation reaction. As such, the STRs show evidence of behavioral changes, including symptoms typical of anxiety and hyperventilation reaction. Accordingly, an in-service incident has been shown and the second element of service connection has been met. For these reasons, and resolving all reasonable doubt in favor of the Veteran, an acquire psychiatric disorder, to include PTSD, adjustment disorder with mixed anxiety and depressed mood, is related to personal assault during service. Accordingly, the appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.