Citation Nr: 21069395 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 15-13 003 DATE: November 18, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, depression, dysthymic disorder, mood disorder, and alcohol use disorder in remission, is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the Veteran's acquired psychiatric disorders are etiologically related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, depression, dysthymic disorder, mood disorder, and alcohol use disorder in remission, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7101(a)(2). The Veteran served on active duty in the Army from October 1963 to November 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In October 2015, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board notes that the VLJ who conducted this hearing is no longer employed at the Board. VLJs who conduct hearings must participate in making the final determination of the claim on appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In a July 2017 letter, the Board notified the Veteran that the VLJ was no longer employed by the Board, and informed him of the right to another hearing. This letter also informed that if the Veteran did not respond within 30 days, the Board would assume that another hearing was not desired and would proceed to adjudicate the claim on appeal. In August 2017, the Veteran indicated that he did not wish to appear for another Board hearing. This issue was previously before the Board in January 2016 and September 2017, where it was remanded for additional development. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, depression, dysthymic disorder, mood disorder, and alcohol use disorder in remission. The Veteran contends that he currently has acquired psychiatric disorders that are directly related to combat fire attacks he experienced while serving on active duty in the Republic of Vietnam. Generally, 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). Furthermore, to establish service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). After review of the evidence, the Board finds that service connection is warranted for the Veteran's acquired psychiatric disorders. The record establishes a current disability, as the Veteran was diagnosed with PTSD, anxiety, depression, dysthymic disorder, mood disorder, and alcohol use disorder in remission by VA and private examiners throughout the rating period on appeal. Additionally, the Board notes the Veteran has competently and credible stated that he experienced mortar and rocket fire attacks during active duty, which is consistent with the nature and circumstances of the Veteran's Vietnam service. Therefore, in agreement with the RO, the April 2011 VA examiner, and the Board in its September 2017 remand order, the Board concedes to the Veteran's claimed in-service stressor as related to fear and hostile military or terrorist activity. 38 U.S.C. § 3.304(f)(3). In lay statements submitted by the Veteran, it was noted that while in service he experienced mortar attacks and weapons firing daily. After service, the Veteran became very secluded and withdrawn from people and could not tolerate being around a crowd of people without getting shakes, which resulted in a doctor prescribing him antidepressants since 1967. See Buddy/Lay Statements. In an April 2011 VA examination, the examiner diagnosed the Veteran with generalized anxiety disorder, and noted the Veteran's claimed stressor was related to fear and hostile military or terrorist activity. Therefore, the examiner provided a favorable opinion as to this condition being most likely caused by or a result of the Veteran's war zone experiences, rationalizing that, after extensive review of the Veteran's file, it is apparent that prior to the Veteran's service there were no evidence of clinically significant anxiety, nor did he experience any trauma, significant stressors, or unusual health or mental health problems. See VA Examination, April 2011. In a July 2014 private examination, the examiner diagnosed the Veteran with PTSD with associated depression, anxiety, and paranoid thinking with a history of alcoholism in remission; and opined that the condition is more than at least as likely as not to be directly related to his combat experiences in Vietnam in 1965. See Private treatment record, July 2014. In a September 2014 VA examination, the examiner diagnosed the Veteran with unspecified anxiety disorder, unspecified depressive disorder, and alcohol use disorder in sustained remission, however, provided an unfavorable opinion as to any of these conditions being etiologically related to the Veteran's active service. The examiner rationalized that service treatment records are silent for any evidence of psychiatric disturbances or a continuum of care since service, with a presumption that most of the Veteran's post-military stressors are related to his alcohol usage and it cannot be logically established that the self-medicating was due to unverified stressor reports. See C&P Exam, September 2014. In an October 2015 Board hearing, the Veteran testified that he first noticed psychiatric symptoms during his service in Vietnam when he became nervous and depressed. See Hearing Testimony, October 2015 In an October 2018 VA examination, the examiner diagnosed the Veteran with persistent depressive disorder, however, provided an unfavorable opinion as to this condition being etiologically related to the Veteran's active service. The examiner rationalized that there are no persistent re-experiencing symptoms that would substantiate the diagnosis of a trauma-related disorder, and there is no indication that depressive disorder has an onset during active service. See C&P Exam, October 2018. In a May 2021 private examination, the examiner diagnosed the Veteran with mood disorder unspecified and alcohol use disorder in full remission, and opined that it is at least as likely as not that the Veteran's condition is due to or the result of his military service. The examiner rationalized that the Veteran's military trauma and no pre-military psychiatric issues, with the use of anti-depressants since 1967, support a finding that his disorder is related to service. Additionally, the examiner discussed and provided evidence to the contrary regarding the previous VA examiners negative opinions, as well as, cited several medical literatures in support his overall conclusion. See Private treatment record, May 2021. Based on the above, the Board finds the probative evidence of record to be in relative equipoise as to whether the Veteran's acquired psychiatric disorders were related to his active duty service. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board concludes that service connection for an acquired psychiatric disorder is warranted; and the claim is granted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.