Citation Nr: 21068610 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-65 292 DATE: November 10, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for the purpose of establishing eligibility for treatment for an acquired psychiatric disorder is dismissed. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, her acquired psychiatric disorder is related to service. 2. This decision grants service connection for an acquired psychiatric disorder; thus, the issue of whether the Veteran is entitled to service connection for purposes of establishing eligibility for treatment for an acquired psychiatric disorder is moot. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The claim for entitlement to service connection for purposes of establishing eligibility for treatment for an acquired psychiatric disorder is dismissed. 38 U.S.C. §§ 1702. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1982 to December 1982 and from November 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding will be associated with the record. The Board notes that the Veteran's claims of entitlement to service connection for posttraumatic stress disorder (PTSD) and a mood disorder and depression had previously been characterized as separate issues. However, as the identified symptoms of these disabilities overlap, as discussed below, the issues have been combined as captioned above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). 1. Entitlement to service connection for an acquired psychiatric disorder is granted. The Veteran is seeking to establish service connection for an acquired psychiatric disorder. Specifically, the Veteran contends her psychiatric disorder is etiologically related to active duty service. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). 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). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(1). Similarly, if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, 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, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(3). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396. Following a review of the evidence of record, the Board resolves reasonable doubt in favor of the Veteran and finds that entitlement to service connection for an acquired psychiatric disorder is warranted. The most recent VA examination conducted in October 2021 reflects diagnoses of PTSD with panic attacks, unspecified mood disorder, borderline personality disorder, stimulant use disorder in sustained remission, and alcohol use disorder in sustained remission. The VA examiner indicated that the symptoms attributable to each diagnosis overlapped and intertwined to the extent they could not be separated without resorting to mere speculation. Multiple in-service stressors in support of the Veteran's claim for PTSD were noted on examination. The Veteran reported serving in Saudi Arabia while scud missiles were flying overhead. One specific incident occurred around December 1990 to May 1991. The Veteran noted she had been dealing with bouts of depression due to a myriad of experiences when a scud missile flew over her while performing her daily operational duties, resulting in increased stress. She later learned the missile had destroyed a hotel she once occupied. The Veteran also reported an incident while serving on guard duty in Saudi Arabia when she and another soldier were fondled by people until other service members came along. Finally, the Veteran reported that she served overseas in oil fields that were burning with skies that were completely dark. The VA examiner noted that while the Veteran had reported multiple in-service stressors, her report of scud missiles being launched and landing in her vicinity was the only stressor that could be verified. This stressor had been supported by a corroborating statement from a service member who had served alongside the Veteran in Saudi Arabia. Further, the Veteran's reports of scud missiles were consistent with the circumstances, conditions, or hardships of service in Southwest Asia. The examiner indicated this stressor was adequate to support a diagnosis of PTSD and was related to the Veteran's fear of hostile military or terrorist activity. However, the examiner opined that she believed the Veteran's PTSD more likely than not preexisted service and was related to childhood traumas. Further, the examiner opined that the Veteran's PTSD was less likely than not aggravated by service. The Veteran had reported experiencing several traumatic events following her separation from service and there was not clear and unmistakable evidence to suggest that the Veteran's current clinical presentation was attributable to her single verified in-service stressor. Regarding the Veteran's other psychiatric disorders, the examiner opined that it was at least as likely as not that the Veteran's unspecified mood disorder was proximately caused by her PTSD. The examiner noted that there was no clear and unmistakable evidence of any significant period of time in which the Veteran was experiencing symptoms of unspecified mood disorder without experiencing symptoms of PTSD at the same time. The examiner also opined that the Veteran's borderline personality disorder was less likely than not related to service, as a personality disorder is a pattern of behavior that is stable and of long duration and its onset can be traced back to adolescence or early childhood. Contrary to the October 2021 VA examiner's negative nexus opinion, an April 2020 evaluation conducted by Ms. L. Z., a licensed master's level social worker, concluded that the Veteran suffered from PTSD and other psychiatric disorders that were etiologically related to her military service. Ms. L. Z. indicated she had reviewed the Veteran's file, including treatment records, and noted stressors including serving near scud missile attacks while freshly grieving the loss of her father and an in-service sexual assault. She noted evidence of record that supported the Veteran's reports of serving near scud missile attacks. She also noted that although the Veteran reported her sexual assault later in life, sexual assaults had a very low reporting rate, and it was not unusual that a veteran would deny its occurrence until later in life. Ms. L. Z. noted that the Veteran had been accepted into service with no noted mental deficiencies and, while there was mention of childhood trauma in her file, there was no clear evidence of a psychiatric diagnosis prior to service. For these reasons, Ms. L. Z. opined that the Veteran's PTSD, mood disorders, and depression were as likely as not a result to her experiences in the military. The Board finds that the evidence is at least in equipoise as to whether it is at least as likely as not that the Veteran's acquired psychiatric disorders were caused by or related to service. The Veteran entered service in sound condition, with no documented psychiatric disorders. She experienced at the very least, one verified in-service stressor. Treatment records reflect multiple psychiatric diagnoses, including PTSD with panic attacks and an unspecified mood disorder. Finally, there is a competent medical opinion of record linking the Veteran's current disability to service. As such, the Board resolves reasonable doubt in favor of the Veteran and finds that entitlement to service connection for an acquired psychiatric disorder is warranted. Gilbert v. Lewinski, 1 Vet. App. 49, 53-56 (1990). Lastly, the Board notes that because all acquired psychiatric disabilities are evaluated under the General Rating Formula for Mental Disorders, a single evaluation will be assigned encompassing all of the Veteran's overlapping psychiatric symptoms, however diagnosed. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009). 2. Entitlement to service connection for the purpose of establishing eligibility for treatment for an acquired psychiatric disorder is dismissed. The award of service connection for an acquired psychiatric disorder herein granted has rendered the matter of entitlement to service connection for the purpose of establishing eligibility for treatment for an acquired psychiatric disorder moot. Therefore, the matter is dismissed. The Veteran will be afforded equal or greater access to VA treatment by virtue of her now established award of service connection for a psychiatric disorder. See 38 U.S.C. § 1710; 38 C.F.R. § 17.36. As such, the appeal as to this specific issue is dismissed. See Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (noting that dismissal is the proper remedy to employ when an appeal has become moot). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.