Citation Nr: 21063478 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-33 958 DATE: October 14, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for allergic rhinitis, to include as due to herbicide exposure, is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's current diagnosis of PTSD is related to an in-service stressor that is supported by credible evidence. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for 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 served on active duty with the United States Army from July 1970 to February 1972. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for PTSD and allergic rhinitis. The Veteran's notice of disagreement (NOD) was received in May 2017. The RO issued the statement of the case (SOC) in May 2017, and the Veteran's VA Form 9, substantive appeal was received in June 2017. In February 2019, the Board denied the claims of entitlement to service connection for PTSD and allergic rhinitis. In an October 2020 Memorandum Decision, the Court of Appeals for Veterans Claims (CAVC or Court) vacated and remanded the Board's February 2019 decision with respect to the issues of entitlement to service connection for PTSD and allergic rhinitis and these issues were returned to the Board. During the pendency of the appeal, in a December 2020 rating decision, the RO granted service connection for major depressive disorder and assigned a 30 percent rating effective October 17, 2016. 1. Entitlement to service connection for PTSD. The Veteran contends that he has PTSD as a result of his combat experience in Vietnam. He specifically describes experiencing "multiple bombarder attacks" and seeing fellow soldiers injured and killed by mortar attacks. See January 2017 VA examination report; see also May 2021 private psychological evaluation. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), 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). Under 38 C.F.R. § 4.125(a), the diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), American Psychiatric Association (2013). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Id. If VA determines that a veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the veteran's service." 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). As an initial matter, the Veteran's service personnel records show that the Veteran was deployed to Vietnam from approximately April 1971 to February 1972, and his MOS was that of a field artilleryman and cannoneer. During the January 2017 VA examination and May 2021 private psychological evaluation, the Veteran reported experiencing "multiple bombarder attacks" and seeing fellow soldiers injured and killed by mortar attacks. The Veteran also recounted feeling "terrified and scared during his deployment and feared he would not make it back home alive." See May 2021 private psychological evaluation. Here, the Board finds that the Veteran engaged in combat during his deployment to Vietnam as a field artilleryman and thus the Veteran's claimed stressors are consistent with the circumstances, conditions and hardship of his service and, as such, no further development or corroborative evidence of the Veteran's PTSD stressor is required. A combat Veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. See 38 U.S.C. § 1154(b) (2012); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The provisions of 38 U.S.C. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522 23 (1996). The provisions of 38 U.S.C. § 1154(b) do not establish a presumption of service connection for a combat Veteran, but ease or lessen the combat Veteran's burden of proof for demonstrating the occurrence of some in-service incident to which the current disability may relate. Clyburn v. West, 12 Vet. App. 296, 303 (1999); Wade v. West, 11 Vet. App. 302, 304 05 (1998); Caluza v. Brown, 7 Vet. App. 498, 507 (1995). In this regard, the Veteran's lay assertions are considered credible. In January 2017, the Veteran was afforded an initial VA examination for PTSD. The Veteran reported experiencing "multiple bombarder attacks" and seeing his fellow soldiers injured by mortar attacks during service in Vietnam. He reported working as a truck driver for 25 years following active service before being fired due to legal issues and drug use. He reported working in construction since 2000 but had been unemployed for a few months at the time of the examination. The Veteran reported a long history of alcohol and drug use as well as being jailed for 15 months in 1999-2000 in relation to his drug use. The VA psychiatrist diagnosed the Veteran with alcohol use disorder and alcohol induced anxiety disorder but found that the Veteran did not meet the DSM-5 diagnostic criteria for PTSD. The psychiatrist found that the Veteran met criteria A, E, F, and I but no other criteria. In an accompanying opinion, the VA psychiatrist concluded that the Veteran's alcohol use disorder and alcohol induced anxiety were results of the Veteran's willful misconduct and not related to military service. In November 2017, the Veteran was afforded another VA examination for PTSD. At the time of the examination, the Veteran stated that his psychological issues began in service during his time in Vietnam as a field artilleryman when he saw fellow soldiers injured by mortar blasts. The VA psychiatrist diagnosed the Veteran with alcohol use disorder but found that the Veteran did not meet the DSM-5 diagnostic criteria for PTSD. While the psychiatrist found that the Veteran's claimed stressor meets Criterion A, the examiner found that the Veteran did not meet any other criteria. The psychiatrist explained that the Veteran did not fulfill the symptoms criteria for persistent re-experiencing the traumatic event, avoiding reminders of the trauma or for increased anxiety and emotional arousal. The psychiatrist also stated that the Veteran's military service did not cause impairment in marital relations, parental performance, social, occupational, or other areas of functioning. The psychiatrist explained that the Veteran had no issues in these areas until his legal issues in 2000. A May 2021 private psychological evaluation and opinion reflects diagnoses of PTSD and MDD under the DSM-5 diagnostic criteria. The private psychologist, Dr. J.T., performed a three-hour clinical interview with the Veteran, a collateral interview with the Veteran's spouse, reviewed the claims file and administered various tests, assessments, and questionnaires to the Veteran. Regarding PTSD, Dr. J.T. utilized a Clinician-Administered PTSD Scale for DSM-5 (CAPS-5) structured interview format in assessing the Veteran's claimed PTSD. Dr. J.T. noted the Veteran's reported combat stressors and that the Veteran reported experiencing "repeated, disturbing and unwanted memories of traumatic events" related to the stressors at least twice a month. The Veteran also reported experiencing recurrent distressing dreams from the trauma he suffered while serving in Vietnam, which has left him with chronic insomnia. Dr. J.T. noted that the Veteran's memories of specific traumatic events from Vietnam are triggered by flashbacks from time to time and that he actively avoids memories, thoughts or feelings connected with his military trauma by isolating himself from locations where he may encounter crowds of people as much as possible. The Veteran stated that he constantly tries to avoid people and visiting family members and feels distant from them. Dr. J.T. determined that the Veteran exceeded all DSM-5 criteria for a severe level of PTSD and opined that it was more likely than not that the Veteran's PTSD and MDD were related to active service, to specifically include as due to trauma he experienced in Vietnam. In support of the opinion, he noted that the Veteran's enlistment examination showed no abnormal psychiatric symptoms or conditions and found that the Veteran's long history of alcohol and substance abuse which began during service was an attempt to self-medicate his psychiatric symptoms. Dr. J.T. stated that there is no history of excessive alcohol or substance use prior to active service and cited to a medical journal article demonstrating a high comorbidity between PTSD, drug abuse and alcoholism among deployed soldiers suffering from PTSD. Finally, Dr. J.T. stated that past VA examiners may have failed to recognize the presence of PTSD due to a variety of reasons including the possible lack of a detailed and comprehensive PTSD assessment such as the CAPS-5 interview methodology; reluctance on the part of PTSD patients to talk about their traumatic experiences; failure to recognize delayed onset PTSD; and misdiagnose of PTSD as depression or anxiety which are common comorbid conditions of PTSD. Dr. J.T. noted that depression, anxiety, alcohol dependence and substance abuse are the most common comorbid disorders of PTSD and cited a medical journal article indicating that these disorders are typically caused by the underlying PTSD. The Board acknowledges that the January 2017 and November 2017 VA examiners found that the Veteran did not meet the DSM-5 criteria for PTSD. However, as noted by the Court in its October 2020 Memorandum Decision, the November 2017 VA examiner failed to discuss the Veteran's October 1976 divorce decree when concluding that the Veteran had no social, marital or occupational problems and failed to address the Veteran's reports of experiencing "nightmares from war memories" on his initial claim form. See October 2020 Memorandum Decision. The January 2017 VA psychiatrist also failed to address this evidence. Conversely, the May 2021 private psychological evaluation report and opinion is well-articulated, analyzes and weighs relevant evidence, and fully considers the Veteran's lay statements regarding his in-service experiences and subsequent psychiatric symptoms. Accordingly, the May 2021 private psychological evaluation report and opinion is afforded significant probative value. Based on the foregoing, the evidence is at least evenly balanced as to whether the Veteran's PTSD is related to service. When the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for PTSD is warranted. REASONS FOR REMAND 1. Entitlement to service connection for allergic rhinitis, to include as due to herbicide exposure, is remanded. The Veteran seeks service connection for allergic rhinitis as secondary to Agent Orange exposure during Vietnam. See October 2016 VA 21-526EZ, Fully Developed Claim. The Veteran has not yet been afforded a VA examination in connection with his claim for service connection for allergic rhinitis. In its October 2020 Memorandum Decision, the Court found that the Board provided inadequate reasons and bases for finding that a VA examination was not warranted as it did not discuss whether the Veteran's contention that his allergic rhinitis is due to herbicide exposure warranted a VA examination. The VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(2)(d); § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McClendon, 20 Vet. App. at 83. In this case, the Veteran contends that his allergic rhinitis is secondary to in-service herbicide exposure. As the Veteran served during Vietnam during the requisite time period, herbicide exposure is conceded. 38 C.F.R. § 3.307 (a) (6) (iii). The Board notes that although allergic rhinitis is not among the disabilities that may be presumptively service-connected on the basis of herbicide exposure, service connection may still be granted on a direct basis as the result of the Veteran's in-service exposure to herbicides. See Polovick v. Shinseki, 23 Vet. App. 48 (2009); see also 38 U.S.C. § 5103A(d)(1); Barr v. Nicholson, 21 Vet. App. 303 (2007). As the Veteran has a current diagnosis, and in-service herbicide exposure is presumed, a VA examination with a nexus opinion is required pursuant to McLendon. Accordingly, the matter is remanded for further development and adjudication, including a VA examination on the nature and etiology of the Veteran's allergic rhinitis and a complete nexus opinion. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records; and, after obtaining all proper authorizations, obtain all outstanding private treatment records identified as pertinent to the issue on appeal and associate them with the claims file. 2. After the aforementioned development, schedule the Veteran for a VA examination to determine the current nature and likely etiology of his allergic rhinitis. The VA examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand. The VA examiner is requested to opine as to: (a.) Whether it is at least as likely as not (a 50 percent probability or higher), that the Veteran's allergic rhinitis had its onset in service, or is otherwise causally related to service, to include as due to the Veteran's presumed exposure to herbicides during service in Vietnam. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for allergic rhinitis in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. A full rationale for all opinions expressed must be provided. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.