Citation Nr: 21071677 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 15-20 022A DATE: December 1, 2021 ORDER Entitlement to service connection for unspecified depressive disorder is granted. FINDING OF FACT The Veteran's unspecified depressive disorder is related to his active-duty service. CONCLUSION OF LAW The criteria for service connection for unspecified depressive disorder have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to September 1973 with additional time in the Army reserve from September 1973 to September 1976, and with the Texas Army National Guard from January 1980 until his discharge in September 1985. He is a Veteran of the Vietnam Era. This matter returns to the Board of Veterans' Appeals (Board) following a May 2021 remand (Board Remand) which requested additional development by the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). In the remand, the Board requested the AOJ obtain a medical opinion to determine whether he has an acquired psychiatric disorder under the DSM-5 criteria, and the nature and etiology of any diagnosed acquired psychiatric disorders. For each diagnosed psychiatric disorder, the medical examiner was to opine whether it is at least as likely as not (50 percent or greater probability) that the disorder manifested during or is otherwise related to the Veteran's period of active service. This opinion was provided in June 2021. While the Veteran presented testimony before two different Veterans Law Judges and is therefore entitled to a decision by both judges, given the fully favorable decision contained herein, the Board finds that the error is harmless. 1. Entitlement to service connection for an acquired psychiatric disorder, identified as unspecified depressive disorder. The Veteran claims he acquired a psychiatric disorder, to include PTSD, depression, and/or anxiety, in or due to his military service, including as related to a parachute jump incident in or about September 1972 where he was required to deploy his reserve parachute due to a tear in his main parachute. The Veteran was a trained parachutist assigned to an airborne unit during his period of active duty. However, he did not participate in any combat operations. After his active service he was no longer assigned to an airborne unit. Service Connection Establishing service connection generally requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There are particular requirements for establishing PTSD that are separate from and in addition to those for establishing service connection generally. 38 C.F.R. § 3.304(f); Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). In order to be entitled to service connection for PTSD, there must be medical evidence of PTSD, medical evidence that establishes a link between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f); Shedden, 381 F.3d at 1167. However, separate corroboration of the existence of a required in-service stressor is not required when the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat. 38 C.F.R. § 3.304(f)(2). Evidence of Record. The post remand VA medical examiner provided 2 separate medical opinions. Of primary significance is the opinion which identifies the Veteran's acquired psychiatric disorder(s) and the stressor(s) on which any diagnosis is based. In this opinion, the VA examiner noted a July 13, 2017 VA Initial Behavioral Health consult which established a diagnosis of depressive disorder, unspecified (provisional), based on the DSM-5 criteria, and which ruled out trauma and any stressor-related disorder. During that consult the Veteran stated that he constantly thinks about his 1972 parachute incident, that he has nightmares, poor sleep, and avoidance issues. In other statements, he claims that the 1972 incident caused him so suffer injuries from the resulting hard landing, and that he has been granted service connection for numerous orthopedic/ musculoskeletal disabilities due to the trauma from his multiple airborne jumps, not just this incident. These other now service-connected disabilities were not specifically listed in this mental health note. During that consult the Veteran stated that he had been "depressed" due to do limitations in mobility and ability, and that he has lost interest/motivation generally. The Board also notes that this consult was conducted by a non-psychologist mental health provider, but the diagnosis was agreed with and signed off on by the supervising psychologist. Based on a review of the Veteran's record, the VA examiner opined that the Veteran has a diagnosis of unspecified depressive disorder caused by his1972 parachute incident during his military service. In the second medical opinion received in May 2021, the VA examiner also acknowledged the July 2017 diagnosis of depressive disorder but noted the lack of evidence that the disorder manifested during the active-duty period. This was the basis for a negative nexus opinion that it was less likely than not (less than 50 percent probability) that the disorder manifested during or is otherwise related to the Veteran's period of active service. Given the apparent inconsistency in these opinions, the Board resolves the matter in favor of the Veteran to find that his acquired unspecified depressive disorder is related to his military service, that being the 1972 parachuting incident and his injuries sustain from his airborne training and exercises. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran was given a VA mental health evaluation in December 2017 to determine if he was to be enrolled in the Virtual PTSD Treatment Team (VPTT) program. He was found to meet DSM-5 criteria A for a single stressor related to the 1972 parachute incident, which included injuries to his right shoulder, hip, and knee due to the hard landing. However, due to his minimum symptoms it was determined that it was not appropriate for his enrollment in the VPTT program. Despite the medical stressor finding related to the 1972 parachute incident, he was not actually given a diagnosis of PTSD at this time. Nor was the stressor asserted to be independently corroborated, instead reliance was based on his own statements. See 38 C.F.R. § 3.304(f); Shedden, 381 F.3d at 1167. The diagnostic impression at that time was to rule-out major depressive disorder, single episode, stated to be only of mild severity. Thus, no actual diagnosis of an acquired psychiatric condition was established from this evaluation. The evidence related to corroboration of the Veteran's 1972 parachute incident consists of his own numerous statements, but as this stressor did not occur during combat, additional corroboration is required. Id. The evidence also contains a written statement from A.S., another soldier who served with the Veteran during training prior to the 1972 incident. A.S. was not in the same unit as the Veteran at the time of the 1972 incident and did not actually witness the event. His statement is that the Veteran told him about the incident at some point after. There is no written record of the Veteran's incident, or treatment for injuries sustained from the incident, contained in his military personnel or medical treatment records. The evidence is also inconsistent whether the Veteran actually reported the incident at the time or sought medical treatment for his claimed injuries. The Board finds it difficult to believe that procedures related to parachute training exercises would not require the reporting of a damaged parachute during a jump, or any time a soldier is required to utilize a reserve parachute, which would not result in a formal investigation. This is particularly so when the solider experiences personal injury. Yet the Veteran has asserted that he followed all appropriate procedures. There is insufficient evidence available for Board to make an informed finding on this issue. There has been no diagnosis of PTSD for the Veteran, and any related symptoms were noted to be minimal which precluded his enrollment in the VPTT program, or which prompted the need for other mental health treatment for PTSD. Therefore, the Board does not here rule on whether the 1972 parachute incident is adequately corroborated to establish a finding of entitlement to service connection for PTSD as the other required criteria are also lacking. At this time the Veteran has only been diagnosed with an acquired psychiatric disorder, stated as unspecified depressive disorder, which has been related to his military service, based on the evaluation and opinion of the VA medical provider. No further competent medical opinions were received which indicate additional mental health disorders. The Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, namely an unspecified depressive disorder, is granted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bannach 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.