Citation Nr: 21064934 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-40 041A DATE: October 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, claimed as anxiety disorder NOS, is granted. FINDING OF FACT The Veteran's acquired psychiatric disability, claimed as anxiety disorder NOS, is related to his service as a combat Veteran in Vietnam. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability are 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 in the United States Army from April 1967 to April 1969 with service in Vietnam. Of note, the Veteran was initially denied PTSD in an August 2013 rating decision for lack of a diagnosis. New evidence, to include a diagnosis of anxiety disorder, was received within one year of that rating decision and a new rating decision denying service connection for anxiety was issued in August 2014. The Veteran filed a timely Notice of Disagreement and the Board considered both rating decisions on appeal. In the October 2019 Board decision, the Board denied the claim for service connection for PTSD and remanded the claim for service connection for an acquired psychiatric disability for a VA examination and opinion. As such, the claim for service connection for PTSD is no longer on appeal. The Board notes that the examination and opinion have been obtained regarding the claim for an acquired psychiatric disability, and the appeal is now ready for appellate review. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for an acquired psychiatric disability The Veteran asserts that his current psychiatric disability is due to his combat service in the Vietnam War; see also spouse's lay evidence. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: '(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' - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The nexus element may also be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Here, the Veteran's participation in the Tet Counter Offensive is documented in his military personnel records. As an initial matter, the Veteran has been diagnosed with anxiety disorder in the July 2014 VA examination, and major depressive disorder with anxious distress in the May 2019 and December 2019 VA examinations. Turning to the medical evidence of record, the Board notes that although there is a negative nexus opinion regarding the Veteran's initial claim for PTSD, there are two positive VA nexus opinions regarding his acquired psychiatric disability. In the July 2014 VA Mental Disorders (other than PTSD and Eating Disorders) VA examination, the examiner diagnosed the Veteran with "Anxiety Disorder NOS [not otherwise specified] (chronic with moderate symptoms)." When asked to provide a medical opinion for direct service connection, the examiner concluded that the Veteran's anxiety disorder was at least as likely as not incurred in or caused by his active-duty service. For his rationale, the examiner noted that the Veteran's anxiety symptomology occurred whenever he thought about his wartime related experiences. In the December 2019 Mental Disorders (other than PTSD and Eating Disorders) VA examination, the Veteran was diagnosed with "Major Depressive Disorder, Recurrent, Moderate, with Anxious Distress." When asked to provide a medical opinion for direct service connection, the examiner concluded the Veteran's psychiatric condition was at least as likely as not incurred in or caused by his service. For the rationale, the examiner stated, "Veteran had no mental health issues prior to service. Veteran now has clear symptoms of major depressive disorder, recurrent, moderate, with anxious distress (claimed as innocently acquired psychiatric disability other than post-traumatic stress disorder), identified in the report, which are related to the claimed/identified in service stressors during his deployment to Vietnam (1967-1968). Medical records support diagnosis of major depressive disorder, recurrent, moderate, with anxious distress. Symptoms for major depressive disorder, recurrent, moderate, with anxious distress meet DSM-V criteria for the disorder. The veteran's claimed major depressive disorder, recurrent, moderate, with anxious distress, is/are at least as likely as not (50 percent or greater probability) incurred in or caused by the fear of hostile military or terrorist activity during service and incurred in or caused by the circumstances, conditions or hardships, of veteran's military service." The Board finds that both of the VA examiners' opinions are highly probative as they each present the medical opinion of a competent expert, informed by review of the claims file, and presented with a persuasive discussion of the examiner's rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that other than the negative nexus opinions regarding his PTSD claim, due to a lack of a diagnosis and which are not for application in this appeal, there are no contradictory opinions or negative opinions regarding service connection for the Veteran's acquired psychiatric disability claim, diagnosed as anxiety disorder and major depressive disorder with anxious distress. Accordingly, the overwhelming probative evidence of record shows that the elements for service connection have been met. Thus, service connection for an acquired psychiatric disability, originally claimed as anxiety disorder, is warranted. 38 C.F.R. § 3.303. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.