Citation Nr: 21070992 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-15 416 DATE: November 29, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression, is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran is currently diagnosed with an acquired psychiatric disability, to include PTSD and depression. 2. The Veteran's acquired psychiatric disability is etiologically related to his credible in-service stressors. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria to establish service connection for an acquired psychiatric disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from March 1978 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated December 2015 and May 2017 of a Department of Veterans Affairs (VA) Regional Office (RO). In the December 2015 rating decision, the RO denied service connection for PTSD, and in the May 2017 rating decision, the RO denied service connection for depression. After reviewing the contentions and evidence of record, and to contemplate the Veteran's psychiatric symptoms, however diagnosed, the Board has recharacterized the Veteran's claim as one for an acquired psychiatric disability, instead of two separate claims for service connection for PTSD and for depression. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In March 2021, the Veteran appeared at a virtual hearing before the undersigned Veterans Law Judge. The Veteran's spouse and Dr. W.K. provided testimony. A copy of the hearing transcript is of record and has been reviewed. The Board observes that the Veteran submitted additional lay and medical evidence after the RO's adjudication in the March 2018 Statement of the Case (SOC), without a waiver of initial RO consideration. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for an acquired psychiatric disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Specific to claims of PTSD, service connection requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). 38 C.F.R. § 3.304(f). As the instant case was certified to the Board after August 4, 2014, a diagnosis of PTSD must be made in accordance with the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.125. 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). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether the veteran "engaged in combat with the enemy." 38 C.F.R. § 3.304(f). If VA determines that the veteran did not engage in combat with the enemy, that he did engage in combat but that the alleged stressor is not combat related, or that the stressor is not related to the fear of hostile military or terroristic activity, then a veteran's lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. Id. Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994); see also Fossie v. West, 12 Vet. App. 1, 6 (1998). The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of a psychiatric disorder, to include PTSD, is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana, 24 Vet. App. at 443 n. 4; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In this case, the Veteran asserts that he currently has an acquired psychiatric disability that is related to, or caused by, his active service. Specifically, he asserts that his acquired psychiatric disability is related to witnessing the deaths and significant injuries of fellow servicemembers while aboard the USS John F. Kennedy during active service. As an initial matter, and after resolution of all reasonable doubt in the Veteran's favor, the Board finds that the Veteran has current psychiatric diagnoses of PTSD and depression, both made in accordance with the DSM-5 criteria. The Board acknowledges that the December 2015 VA examiner determined that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-5 criteria, instead diagnosing the Veteran with "Cluster B & C traits." However, in a private psychological evaluation report dated November 2016, Dr. W.K., a clinical psychologist, determined that the Veteran has a primary diagnosis of PTSD and a secondary diagnosis of depression under the DSM-5 criteria. Dr. W.K. reached this conclusion based on a review of the Veteran's claims file and clinical assessment of the Veteran and provided a detailed discussion of how each DSM-5 criterion for PTSD was satisfied. Dr. W.K. reiterated his findings at the March 2021 Board hearing. Therefore, a current acquired psychiatric disability is established. Next, the Board finds that there is credible supporting evidence that the Veteran's claimed stressors occurred. In September 2015, a response from the Defense Personnel Records Information Retrieval System (DPRIS) was associated with the Veteran's claims file. DPRIS was able to verify the Veteran's claimed stressor regarding the death of A.D. on the deck of the USS John F. Kennedy. Additionally, in a June 2017 lay statement, the Veteran's fellow servicemember L.K. corroborated the Veteran's account of the two deaths and casualties caused by the breaking of an arresting gear cable on the deck of the USS John F. Kennedy. The Veteran's military personnel records also tend to support the Veteran's claimed stressors, since they show that he served aboard the USS John F. Kennedy during that timeframe. Accordingly, in-service stressors are conceded. Finally, the Board finds that there is probative medical evidence of a causal relationship between the Veteran's current symptomatology and the specific claimed in-service stressors. In the November 2016 private psychological evaluation report, Dr. W.K. wrote, "Criteria A is established by the incidents aboard ship whereby [the Veteran] witnessed a person being killed (decapitated) and others being significantly injured in two separate traumatic events...The focus of all of his PTSD symptoms surround these particular two events." As an aside, the Board notes that the December 2015 VA examiner did not provide an etiology opinion. Based on the foregoing, and after resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for an acquired psychiatric disability is warranted. The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.