Citation Nr: 21062735 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-38 259 DATE: October 12, 2021 ORDER A combat designation for the Veteran's posttraumatic stress disorder (PTSD), depressive disorder, and cognitive disorder is granted. REMANDED A separate evaluation for a traumatic brain injury (TBI) is remanded. FINDING OF FACT Resolving any reasonable doubt in favor of the Veteran, during his active duty service he encountered a military foe or hostile unit or instrumentality such to qualify as combat. CONCLUSION OF LAW The criteria for whether the Veteran's PTSD, depressive disorder, and cognitive disorder are combat-related are met. 38U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2002 to November 2016, to include service in Southwest Asia. The Veteran testified before the undersigned Veterans Law Judge at a hearing in March 2020; a copy of the transcript is of record. Combat Designation When there is no award signifying combat, a combat determination must be made on a case by case basis. Sizemore v. Principi,18 Vet. App. 264 (2004). A finding that a Veteran engaged in combat with the enemy under 38 U.S.C. § 1154 (b) and 38 C.F.R. § 3.304 (d) requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to Veterans who served in a general "combat area" or "combat zone," but did not themselves engage in combat with the enemy. Evidence submitted to support a claim that a Veteran engaged in combat may include the Veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). The Court has held that receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore, 18 Vet. App. 264. In addressing the question of whether the Veteran engaged in combat, the benefit of the doubt doctrine is for application. 38 U.S.C. § 5107 (b) 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to "any other point"); Sizemore, 18 Vet. App. 276. In this matter, the Veteran concedes that his service personnel records (SPRs) and Report of Separation from the Armed Forces (DD Form 214) do not reflect receipt of medals, badges, or decorations that specifically denote combat with the enemy. SPRs record no wounds due to combat. See March 2020 hearing testimony, SPRs, and DD-214. His military occupational specialty (MOS) is not one that was typically supportive of participation in combat. See DD-214. However, the Veteran testified in his hearing that he did come under rocket/mortar fire while on active duty in Southwest Asia. The evidence of record shows that the Veteran identified he was in a base perimeter guard tower and stationed on a base when the base came under mortar attack. He also identified that he came under mortar attack while being transported to a base. See April 2018 Statement in Support of Claim for PTSD. The Veteran's initial PTSD examination in August 2015 identified his fear of hostile military or terrorist activity and coming under mortar attack as a verified stressor. Also of evidence is a statement from the Veteran's commanding officer during the Veteran's 2004 deployment to Iraq. See May 2017 Statement from M.A.T. In that statement, the Veteran's commanding officer indicated that the Veteran was on-post as a sentry in a watch-tower on base in 2004 when the base came under mortar attack. The Veteran's commanding officer also identified the mortars as instrumentalities of war. The statement further reported that throughout the Veteran's deployment to the base in 2004, the base would come under sporadic but sustained mortar fire. Based on the foregoing and resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's service while stationed on base in 2004 and as a sentry of the base qualifies as combat. The Court has clearly held that coming under fire qualifies as combat. The Veteran has established through credible and unrefuted testimony both his own and that of his commanding officer that he came under enemy mortar fire while stationed as a sentry of a base in Iraq in 2004. The Board finds that this mortar fire qualifies as encountering a military foe or hostile unit or instrumentality such to meet the criteria for a combat designation. As such, the Board finds that the Veteran's PTSD, depressive disorder, and cognitive disorder are due to and direct result of his combat participation while deployed. The Veteran's request for a combat designation is granted. REASONS FOR REMAND Separate Evaluation for TBI At present, the Veteran is service connected for PTSD, depressive disorder, cognitive disorder, and TBI under one single diagnostic code (9411). The Veteran has indicated that he experiences TBI symptoms separate and apart from his PTSD and other mental health disorder symptoms and that his TBI warrants a separate rating. See March 2020 hearing testimony. The Veteran last underwent VA examinations to determine the symptomology and severity of his mental health disorders and TBI in 2015 and 2017. The Board finds that more current examinations are warranted. The matter is REMANDED for the following action: 1. Schedule the Veteran for examinations by an appropriate clinician to determine the current severity of his service-connected psychiatric disability and TBI. [The current service-connected disability is "posttraumatic stress disorder, depressive disorder, traumatic brain injury, and cognitive disorder"] The examiner should provide a full description of both of the Veteran's service connected disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria for each disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms of each disability. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to the Veteran's mental health disorders and/or his TBI. (Continued on the next page) To be clear, the Veteran should be afforded separate examinations for his mental health disorder and his TBI. The examiner should identify, if possible, what symptoms are attributable to the Veteran's diagnosed mental health disorders and what symptoms are attributable to his TBI. The Veteran's statements regarding his symptomology, including his March 2020 hearing testimony, should be recorded, and considered. 2. After the above directives have been completed, and completing any other development necessary, determine if the Veteran's TBI warrants a separate rating under the appropriate diagnostic code criteria considering all pertinent evidence and legal authority. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.