Citation Nr: 21065866 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-00 175 DATE: October 27, 2021 ORDER Service connection for acquired psychiatric disorder to include depression, anxiety disorder, and posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT The Veteran has a diagnosis of PTSD, an occurrence of an in-service stressor, and the evidence is in equipoise on whether the Veteran's PTSD is related to service. CONCLUSION OF LAW The criteria for service connection for acquired psychiatric disorder to include depression, anxiety disorder and PTSD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 2007 to April 2012. He received the Army Commendation Medal with "V" device and the Combat Action Badge, among other decorations for this service. In July 2021, the Veteran testified at a videoconference hearing before the undersigned, and a transcript of that hearing is of record. 1. Service connection for acquired psychiatric disorder to include depression, anxiety disorder, and PTSD. The Veteran contends that his current PTSD diagnosis is related to the traumatic events he experienced while deployed in Afghanistan. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Associations DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 5th Edition (DSM 5). In determining whether the Veteran has a current diagnosis of PTSD, the Board acknowledges that mental health professionals are experts, are presumed to know the DSM requirements applicable to their practice, and to have taken the DSM requirements into account in rendering a PTSD diagnosis. As such, a PTSD diagnosis provided by a mental-health professional must be presumed to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor, unless there is evidence to the contrary. See Cohen, 10 Vet. App. at 140. After careful review, the Board finds that the evidence is in equipoise on whether service connection for PTSD is warranted. In January 2012, service treatment records (STRs) indicate that the Veteran was diagnosed with depression. In November 2012, private treatment records show a psychologist diagnosed the Veteran with PTSD and a depressive disorder. Further, in May 2013, VA treatment records also show that the Veteran was diagnosed with a depressive disorder. In November 2018, private treatment notes indicate that the Veteran's diagnoses of PTSD and major depressive disorder were confirmed by a psychologist. Thus, the current disability requirement for service connection for PTSD is satisfied. In November 2016, the Veteran underwent a VA PTSD examination. The VA examiner noted multiple in-service stressor events had occurred. In 2010, the Veteran was on guard duty and stated that the perimeter was breached and there was a firefight, where he killed two people. Additionally, the Veteran reported he was exposed to mortars and missile fire in Afghanistan. Further, the Veteran also testified to both these events occurring during a July 2021 Board hearing before the undersigned. As noted above, the Veteran is highly decorated and received the Combat Action Badge for his service. Accordingly, the combat provision of 38 U.S.C. § 1154 (b) and the specific provisions regarding combat in the context of PTSD claims apply. Therefore, there is evidence that the in-service stressor element for a claim for service connection for PTSD is satisfied. The question for the Board is whether there is a link, established by medical evidence, between the Veteran's current PTSD symptoms and the in-service stressors. The Board finds that entitlement to service connection for PTSD is warranted. First, the Board acknowledges the Veteran had a VA mental disorder examination in July 2013 and a VA PTSD examination in November 2016. However, both these examinations did not provide adequate opinions on whether the Veteran had a mental condition related to service. For the July 2013 VA examination, the VA examiner was requested to provide an opinion on whether the Veteran's psychological disorder to include severe depression and anxiety, was related to service. No opinion was provided. For the November 2016 VA PTSD examination, an opinion was not given by the VA examiner as they indicated that a diagnosis of PTSD could not be confirmed. The examiner stated that there were insufficient symptoms that could be linked to the Veteran's in-service stressor. Further, the VA examiner noted that the Veteran's depressive disorder could not be linked in terms of a nexus to his in-service stressor because he was not diagnosed with PTSD in-service but instead with anxiety in the context of cocaine and opioid. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Board has considered the Veteran's July 2013 and November 2013 VA examinations and affords the examiner's opinions low probative value. First, the Board notes that the July 2013 VA mental disorder examination did not provide any opinion on whether the Veteran's mental disorder was related to service, despite being requested too. Second, the November 2016 VA examiner's opinion stated that the Veteran did not have a diagnosis of PTSD. However, the VA examiner did not comment on the November 2012 private treatment records indicating the Veteran was diagnosed with PTSD just a few months after being discharged from service. As such, both the Veteran's July 2013 and November 2013 VA examinations are given low probative value. In November 2018, the Veteran under a psychological evaluation completed by a private psychologist. The psychologist opined that the Veteran's PTSD and depressive disorders were caused by his military traumas. The psychologist reviewed and provided a summary of the Veteran's medical records and in-service traumas. He also interviewed the Veteran. The Veteran described traumatic experiences during his Afghanistan deployment and their effect on his life. The Veteran also endorse current depression and anxiety. The private psychologist also confirmed that the Veteran was diagnosed with PTSD and used a version of the PTSD checklist for DSM-5 to make this diagnosis. The psychologist indicated that the Veteran reported and showed many factors that place him well above the currently proposed cut-off for a provisional PTSD diagnosis. The Board finds the November 2018 private medical opinion to be both competent and credible, and as such, entitled to probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The opinion was rendered after reviewing the entire VA claims file, including all ancillary treatment records, lay statements, and VA PTSD examinations. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). The opining psychologist provided the facts and rationale on which their opinion was based. Therefore, the Board finds the November 2018 private medical opinion to be probative. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight to be attached to medical opinions are within the province of the Board). Additionally, in July 2021, the Veteran had a Board hearing before the undersigned and testified that he received treatment for PTSD immediately after service. He also stated that his mental health was worse after deployment. The Veteran noted he was having sleeping problems, drinking more, and becoming more irritable. The Board also finds the statements by the Veteran to be probative, as he is competent to describe observable symptoms of his mental health. The statements have also been consistent with mental health notes in VA and private treatment records since the Veteran finished his active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). In sum, the Board finds that the evidence is at least in equipoise as to whether the Veteran's PTSD is related to active service. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the- doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). In this case, the Board finds that there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter." Here, the Veteran has a current diagnosis of PTSD, a confirmed in-service stressor, and a probative November 2018 private psychologist's opinion providing a medical nexus linking the Veteran's PTSD to service. The Board acknowledges that the July 2013 and November 2013 VA examinations are given less probative value than the November 2018 private psychological examination, which the Board affords more probative weight. As such, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for acquired psychiatric disorder to include depression, anxiety disorder, and PTSD is warranted. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.