Citation Nr: 21069337 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-46 710A DATE: November 18, 2021 ORDER Entitlement to service connection for a cervical spine disorder is granted. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD) and major depressive disorder (MDD), is granted. FINDINGS OF FACT 1. The Veteran's cervical spine disorder had its onset in active service. 2. The Veteran's acquired psychiatric disorder, diagnosed as PTSD and MDD, is related active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131; 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 Marine Corps from May 1974 to May 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims of service connection for cervical spine disability, which he filed on September 3, 2009, and his claim of service connection for psychiatric disability, which he filed on August 12, 2010. The Veteran testified at a hearing held in October 2021 before the undersigned Veterans Law Judge. The Board notes the Veteran filed a claim for entitlement to service connection for PTSD. The evidence of record includes diagnoses of PTSD and MDD. See VA treatment records dated February 2014, December 2018, and June 2021. Accordingly, the Board has recharacterized the issue of entitlement to service connection for PTSD to entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD and MDD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Additionally, the Board notes in December 2018, the Veteran chose to participate in the Rapid Appeals Modernization Program and withdrew his legacy appeal for the issues of entitlement to a total disability rating based on individual unemployability and an increased rating for right shoulder gunshot wound residuals. Therefore, the Board will not address said issues in this decision. Service Connection Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 U.S.C. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). 1. Entitlement to service connection for a cervical spine disorder. The Veteran contends that neck pain began during service and has been recurrent since that time. Specifically, the Veteran stated that he was shot in the right shoulder during service and neck pain started immediately after he was shot. See October 2021, Board hearing. The Board finds service connection for a cervical spine disorder is warranted. Military personnel records include a statement obtained from the Veteran less than one month after he was shot during service. The Veteran reported that he and a friend just pulled into a parking lot of a club and witnessed the end of a fight. The Veteran saw one of the men from the fight stumble over to a car and pull out a gun. He further stated there was a tussle over the gun, he heard a gunshot, and immediately felt pain in the back of his neck. See February 1975, Military personnel record. The record contains diagnoses of degenerative disc disease and spondylosis of the cervical spine. See November 2010, VA examination. Post-service treatment records reflect the Veteran's complaints of constant pain in the cervical region from a gunshot sustained during service. Physical examination of the Veteran's neck revealed decreased range of motion and pain with flexion, extension, and rotation of the neck. See November 2010, VA examination; VA treatment records dated March 1992, January 2009, August 2009, and April 2021. In light of the medical and lay evidence of record, the Board concludes the evidence shows the Veteran's cervical spine disorder had its onset in service and has been recurrent since that time. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Board notes the competent and credible evidence includes the Veteran's testimony that neck pain began during service immediately after he was shot and has been recurrent since that time. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board acknowledges the November 2010 VA examiner's negative nexus opinion; however, because the evidence shows that the Veteran's cervical spine disorder had its onset in service, service connection for a cervical spine disorder is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). 2. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD and MDD. The Veteran contends that his acquired psychiatric disorder developed as a result of being shot during service. Establishing service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 38 C.F.R. §§ 3.304(f), 4.125. The Board finds that service connection for an acquired psychiatric disorder, diagnosed as PTSD and MDD, is warranted. The Veteran has current diagnoses of PTSD and MDD by a VA psychiatrist who noted the Veteran's psychiatric symptoms are related to the in-service shooting. See May 2016, VA examination (diagnosing severe MDD and noting the Veteran's score of 50 is suggestive of PTSD); VA treatment records dated July 2009, February 2014 (noting PTSD symptoms of nightmares from in-service shooting, flashbacks, slight paranoia, and being triggered by Caucasian males), December 2016 (prescribed trazodone for PTSD and depression), December 2018 (restarted venlafaxine for PTSD and MDD), and June 2021 (psychiatric symptoms include frequent dreams of being shot in the shoulder during service, intrusive thoughts of being shot, and an inability to discuss in-service trauma from the shooting). Service treatment records corroborate the in-service stressor of a right shoulder gunshot wound. See January 1975, STR. In addition, the Veteran has submitted multiple corroborating lay statements that the Board finds are probative as to whether service connection is warranted for his psychiatric disability. Accordingly, service connection for an acquired psychiatric disorder, diagnosed as PTSD and MDD, is warranted. The Board acknowledges the May 2016 VA examiner's opinion that the Veteran's psychiatric condition did not meet the criteria for a PTSD diagnosis, even though the Veteran's reported symptoms that fit the PTSD criteria, because he found the Veteran was not reliable. (Continued on the next page) Because the Board finds the Veteran account of having psychiatric disability related to service to be credible and competent to report his psychiatric symptoms pursuant to Jandreau v. Nicholson, 492 F.3d 1372 (2007), however, reasonable doubt is resolved in the Veteran's favor. See 38 C.F.R. § 3.102. As such, service connection is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, Associate 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.