Citation Nr: 21067033 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-18 568 DATE: November 3, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for major depression is granted. FINDINGS OF FACT 1. The Veteran has been diagnosed with PTSD that is etiologically related to an in-service stressor during her deployment to Saudi Arabia between January 1991 and May 1991. 2. The Veteran's major depression had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for MDD have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1989 to May 1989, from November 1990 to May 1991, and from August 1993 to July 1994. This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Board denied the currently appealed claims. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the Court issued an Order granting a Joint Motion for Remand (JMR) vacating and remanding the Board's July 2020 decision. The Court found that the Board had not provided adequate reasons and bases for its decision, and that the September 2019 VA examinationupon which the Board had relied in denying the Veteran's claimswas inadequate. Entitlement to service connection for PTSD For PTSD, service connection requires the showing of three elements: (1) medical evidence establishing a clear diagnosis of PTSD under 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and a claimed in-service stressor. The Veteran's treatment records show that she was diagnosed with PTSD during a VA neuropsychological examination in March 2021. Therefore, the first element of service connection for PTSD has been met. For the second element, lay testimony alone is typically not sufficient to establish that a stressor occurred; it must be corroborated by "credible supporting evidence." Cohen v. Brown, 10 Vet. App. 128, 140 (1997). However, there are four circumstances in which lay testimony alone may be sufficient: 1) when PTSD is diagnosed in service with stressor related to that service; 2) when the Veteran is considered a "combat veteran" under 38 U.S.C. § 1154 with stressor related to combat; 3) when the stressor is related to fear of hostile military or terrorist activity; and 4) when the veteran is a prisoner-of-war under 38 C.F.R. § 3.1(y) with stressor related to prisoner-of-war experience. See 38 C.F.R. § 3.304(f). If a PTSD claim is based on a veteran's fear of hostile military or terrorist activity, then lay testimony is sufficient to corroborate the existence of the stressor if (1) a psychiatrist or psychologist "confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor;" (2) a VA psychiatrist or psychologist's findings are not contradicted by "clear and convincing evidence;" and (3) "the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service." 38 C.F.R. § 3.304(f)(3). In this case, the medical evidence does not reflect a diagnosis of PTSD, provided by a VA psychiatrist or psychologist, based on a fear of hostile military or terrorist activity. Thus, the provisions of 38 C.F.R. § 3.304(f)(3) do not apply. Nevertheless, the Veteran claims PTSD based on multiple stressors, to include stressors reported to have occurred during her deployment to Saudi Arabia; the Veteran has consistently described staying at Khobar Towers for several weeks at the beginning of her deployment in January 1991, while there were "nightly airstrikes" at the buildings. Psychologists and psychiatrists who have examined the Veteran have differed on whether this stressor is adequate to support a diagnosis of PTSD. VA examinations in November 2013 and September 2019 stated that it was not, however, neither opinion offered reasons for that conclusion. A May 2015 letter, as well as November 2017 and December 2018 Disability Benefits Questionnaires (DBQs) submitted by private psychologists conclude that the Veteran had in-service stressors adequate to support a diagnosis of PTSD, but do not explain which of her stressors they are relying on. The Board finds that the most probative evidence on this issue is a July 2021 evaluation by a private psychologist, which found that the airstrikes near the Veteran's location qualified as "exposure to actual or threatened death," sufficient to meet Criterion A of a PTSD diagnosis, and that symptoms such as hypervigilance, sleep disturbance, fear of loud noises, and difficulty with concentration were related to this stressor. The July 2021 examiner concluded that the Veteran's PTSD was at least as likely as not related to her military service; as the examiner's opinion is based on an examination of the Veteran and full review of the claims file, and is supported by adequate rationale, the Board finds that it merits probative weight. There is no clear and convincing evidence in the record to contradict the findings of the July 2021 examination, and the described stressor is consistent with the places, types, and circumstances of the Veteran's service. Her military personnel records confirm that she was stationed in Saudi Arabia (from January 1991 to May 1991) at the time she claims her stressor occurred. The airstrikes, as well as other traumatic events, are also described in a September 2017 letter from another Veteran who served in the same unit. The preponderance of the evidence supports finding that the reported in-service stressor actually occurred, and is linked to the Veteran's current diagnosis of PTSD; entitlement to service connection for PTSD is granted. Entitlement to service connection for major depression For depression, as well as most disabilities other than PTSD, establishing entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's VA treatment records show a current diagnosis of major depressive disorder. Therefore, the first element of service connection is met. The Veteran's service treatment records show no mental health concerns at her entrance examination, but examinations in December 1990, May 1991 noted "depression or excessive worry" and "nervous trouble" as ongoing problems. Therefore, the second element of service connection is met. A note on the Veteran's May 1991 examination described her depression as "related to anemia," rather than a psychiatric disorder. However, the July 2021 examiner found this explanation insufficient, noting the Veteran's reports of chronic, severe depression beginning during service and continuing to the present day. A November 2017 letter from the Veteran's mother corroborates her testimony that she has had continuous depression since service; the letter states that the Veteran "changed considerably since she has been in the military," becoming irritable, socially withdrawn, and uninterested in activities she enjoyed prior to service. The July 2021 examiner found that the persistence and severity of the Veteran's depression, combined with the failure of iron supplementation to alleviate symptoms, made it unlikely that the Veteran's in-service depressive symptoms were simply a result of anemia. The examiner found that it was more likely than not that the Veteran's in-service depressive episodes were a manifestation of her currently diagnosed major depressive disorder. As this examiner's opinion is based on an examination of the Veteran and full review of the claims file, and is supported by adequate rationale, the Board finds that it merits probative weight. The Board finds that it is at least as likely as not that the Veteran's major depressive disorder had its onset during active service. Entitlement to service connection for major depressive disorder is granted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.