Citation Nr: 20067755 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 12-14 526A DATE: November 3, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder diagnosed as adjustment disorder with disturbance of mood and conduct is granted. FINDING OF FACT The Veteran's acquired psychiatric disorder diagnosed as adjustment disorder with disturbance of mood and conduct at least as likely as not is etiologically related to events during his service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder diagnosed as adjustment disorder with disturbance of mood and conduct, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1973 to December 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2016 the Veteran had a Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. This VLJ has since retired. In June 2021 the Veteran had another Board hearing, this time before the undersigned VLJ. He again provided testimony on the psychiatric disorder service connection claim. A transcript of that hearing is of record. This matter was previously before the Board in February 2017, November 2017, January 2020, and October 2020. Each time the Board remanded the matter to the RO for further development. 1. Service connection for an acquired psychiatric disorder The Veteran contends that he has an acquired psychiatric disorder that is attributable to his service. He reports that he had upsetting experiences during service. He relates that in response to those experiences he felt fear and he had difficulty sleeping. He states that after service he had ongoing anxiety and irritability. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including psychoses, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Posttraumatic stress disorder (PTSD) is a mental disorder that develops as a result of traumatic experience. It is possible for service connection to be established for PTSD that becomes manifest after separation from service. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (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. 38 C.F.R. § 3.304(f). VA considers mental disorders based on the nomenclature in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) from the American Psychiatric Association. 38 C.F.R. § 4.130 (2020). Diagnosis of a mental disorder must conform to the DSM-5. See 38 C.F.R. § 4.125(a) (2020). In summary, PTSD may be diagnosed when the person was exposed to a traumatic event, the traumatic event is persistently reexperienced, there is persistent avoidance of stimuli associated with the trauma, there are alterations in cognitions and moods associated with the trauma in at least two ways, there are persistent symptoms of increased arousal in at least two ways, the disturbance lasts more than one month, and the disturbance causes clinically significant distress or impairment in functioning. DSM-5 at Code 309.81. The Court has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. On examination in October 1973 for entrance to service, the Veteran marked yes for history of frequent trouble sleeping. The examiner marked normal for the Veteran's psychiatric condition. His service medical records and service personnel records do not reflect any psychological complaints or treatment. VA treatment records from March 1997 reflect that the Veteran was started in substance abuse rehabilitation. The Veteran's claims file contains records of VA mental health treatment, including substance abuse treatment and vocational rehabilitation, in 2007 through 2020. In December 2007 the Veteran reported nightmares, flashbacks, increased vigilance, and avoidance behaviors since he was attacked by a gang in 2003. A VA psychiatrist diagnosed PTSD and alcohol, cocaine, and nicotine dependence. In December 2007 the Veteran submitted a claim for service connection for PTSD. In a March 2008 statement, he wrote that he was attacked in 2003. He stated that he continued to have flashbacks and fear of being alone at home. In another March 2008 statement, the Veteran wrote that during his 1973 service a sergeant stomped on, kicked, and ground his boot heel into the Veteran's feet. In February 2009 the Veteran had an RO hearing regarding a claim for service connection for foot disorders. He reported that during service his feet were repeatedly stomped on and kicked. In the August 2016 Board hearing, the Veteran reported that in service, after he went to sick call for foot problems, a drill instructor repeatedly kicked his feet and ground his boot heel into the Veteran's feet, causing tremendous pain. He stated that he still had intrusive and upsetting memories of that drill instructor. He indicated that, from then on, he feared people in authority. He asserted that he had PTSD symptoms before he was attacked in 2003. He noted that he had VA mental health treatment from as early as the 1990s. In VA mental health treatment in September 2016, the Veteran reported having experienced PTSD symptoms since his military service. He reported that through the present his nightmares and intrusive memories were predominantly about abuse perpetrated by a drill instructor. In February 2017, clinicians diagnosed mood disorder and depressive disorder. The Veteran had a VA PTSD examination in March 2017. He reported that a drill instructor physically abused him. He related having vivid dreams about that experience. He indicated that as early as the 1990s he had mental health treatment in response to suicidal thoughts. He reported that in 2003 he was attacked by three people and sustained injuries. He stated that he did not have intrusive memories about that incident. The examiner found that Veteran's current symptoms did not meet the criteria for a diagnosis of PTSD but did meet the criteria for a diagnosis of depressive disorder with anxious distress. The examiner expressed the opinion that the current disorder was less likely than not due to events during the Veteran's service. The examiner explained that there was no evidence that the Veteran had mental health treatment until many years after service. The examiner stated that reactions such as substance abuse are considered markers of past sexual assault, but not physical assault. In December 2017 the Veteran wrote that during service a drill instructor left a written message about the instructor's penis size where the trainees could see it. The Veteran stated that later the instructor called the Veteran into his office and ground his penis against the Veteran. The Veteran reported that at the time he felt horrible and fearful. The Veteran also stated that a fellow trainee, a private, showed the Veteran how to inhale lighter fluid. He recalled that he felt scared of the private, who was much bigger than him and frequently looked at him in a lustful way. He reported that after his service and discharge, his substance abuse increased greatly. He stated that he lost all respect for authority and he felt depressed almost all of the time. In December 2017, the Veteran's sister A. D. O. wrote that the Veteran was a happy person before service. Ms. O. stated that when he returned home from service he seemed like a different person. She reported that he was depressed and he self-medicated with alcohol and drugs. She stated that he eventually confided that in service he was assaulted by a superior, and that the abuse really affected him. The Veteran's sister F. D. K. wrote that when the Veteran returned from service he was changed. Ms. K. stated that he was very distant. He reported that over time he began to drink excessively and to use drugs. On VA examination in May 2019, the Veteran voiced feelings of anger and shame about the sexual assault by the drill instructor. The examiner found that the described action met the definition of military sexual trauma (MST). The examiner concluded, however, that the Veteran's reactions to the assault did not meet the criteria for a stressor that produced PTSD. The examiner expressed the opinion that it is less likely than not that the Veteran presently had PTSD, or any acquired psychiatric condition, that was due to any event in service. In explanation, the examiner found that the Veteran's present feelings of anger and shame about the drill instructor's actions did not rise to the level of a diagnosable psychological disorder. In the January 2020 Board remand, the Board found that the opinions in the March 2017 and May 2019 VA examinations inadequately addressed evidence that the Veteran had psychological disorder symptoms before the 2003 attack. On VA examination in March 2020, the examiner found that the Veteran had depressive disorder with anxious mood. The examiner expressed the opinion that the Veteran's psychiatric disorder was less likely than not related to his military service. The examiner explained that there were no records of treatment for depression soon after the Veteran's service, and that the earliest diagnosis of depression was in the 1990s. In the October 2020 Board remand, the Board found that the March 2020 VA examination inadequately addressed lay statements from the Veteran and two of his sisters. In June 2021, the Veteran had a Board virtual hearing. He reported that in service he was in fear of the drill instructor who repeatedly stomped on and ground his heel into already painful areas of the Veteran's feet. He indicated that it was a different drill instructor who ground his penis against the Veteran. He reported that in service his reactions to the physical and sexual assaults included confusion and fear. After those troubling events, he stated, he had difficulty sleeping. He reported that after discharge from service he continued to have troubling dreams and memories of the events. He related that he remained troubled and he self-medicated with alcohol and drugs. He indicated that he first had mental health treatment in the 1990s, for alcohol dependence. He asserted that the attack he experienced long after service, in 2003, presently produced far fewer intrusive memories than the physical and sexual attacks in service in 1973. In August 2021, private psychologist Q. A.-S., Ph. D., reviewed the Veteran's records and interviewed the Veteran. Dr. A.-S. noted in detail the Veteran's accounts of events and psychological symptoms during and after service. Dr. A.-S. discussed information from the Veteran's treatment and examination records. Dr. A-S. concluded that the most accurate diagnoses of the Veteran's psychiatric conditions were adjustment disorder with mixed disturbance of mood and conduct, and polysubstance dependence in questionable remission. Dr. A.-S. expressed the opinion that the Veteran's adjustment disorder as likely as not was related to events during his military service. The Veteran has current acquired psychiatric disorders. Several mental health professionals, including Dr. A.-S., have persuasively explained their conclusions that the Veteran does not have a disorder that meets the criteria for a diagnosis of PTSD. Clinicians have provided other diagnoses, however. Dr. A.-S.'s review and explanation are persuasive as to the diagnoses of adjustment disorder and polysubstance dependence. The assembled records from the time of the Veteran's service do not provide information about his mental state then. That history is addressed by later statements from the Veteran and two of his sisters. Those statements are based on recollections of feelings, observations, and impressions from many years earlier. Nonetheless, the recollections of the Veteran and his sisters are sufficiently credible and reliable to provide a picture of the Veteran's reactions and behavior during and after his experiences in service. The Board accepts that after his experiences in service he felt troubled and had new or increased mood issues such as depression and problem behaviors such as substance abuse. The 2017 and 2019 VA examiner's opinions against a nexus between the Veteran's service and current psychiatric disorders did not adequately consider evidence that he had psychiatric disorder symptoms before the 2003 attack. The 2020 VA examiner considered that history and opined against a nexus. That examiner appears to have found the lack of mental health treatment before the 1990s more significant than the sisters' accounts that the Veteran's mood and behavior were noticeably changed immediately after service. In contrast, Dr. A.-S. found, based on the same evidence, at least equivocal support for a nexus. Dr. A.-S.'s opinion for a nexus between events in the Veteran's service and his adjustment disorder is at least as persuasive as the opinions against such a nexus. Resolving reasonable doubt in the Veteran's favor, the Board grants service connection for the Veteran's psychiatric disorder described as adjustment disorder with mixed disturbance of mood and conduct. K. PARAKKAL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. J. Kunz, 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.