Citation Nr: 21072459 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-30 718 DATE: December 3, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for an acquired psychiatric disorder, other than PTSD, to include major depressive disorder is granted. REMANDED The claim of a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's reported stressor, upon which his PTSD diagnosis was based, has not been corroborated, he did not serve in combat, and his stressor was not based on the fear of hostile military or terrorist activity; other psychiatric disabilities have not otherwise been etiologically related to an in-service injury, event, or disease. 2. The evidence of record supports a finding that the Veteran has an acquired psychiatric disorder, other than PTSD, diagnosed as major depressive disorder, that is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for an acquired psychiatric disorder, other than PTSD, to include major depressive disorder have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1972 to March 1974. The Board remanded the appeal in February 2019 for further development; there has been substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Service connection for PTSD 2. Service connection for an acquired psychiatric disorder, other than PTSD, to include major depressive disorder The Veteran is seeking service connection for his acquired psychiatric disorder, to include PTSD and major depressive disorder. The Veteran asserted in his April 2013 claim that he witnessed a shooting of a fellow soldier in 1973 (specifically, soldier named Howard shot a soldier named Smith) while stationed in the Korean Demilitarized Zone (DMZ). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed condition, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). To establish entitlement to 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 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). The evidence required to establish a claimed in-service stressor depends on the nature of both the stressor and the Veteran's service. 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. 38 C.F.R. § 3.304 (f)(2). Without recognized combat participation, if the Veteran's claimed stressor is related to a fear of hostile military or terrorist activity, and a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and 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. 38 C.F.R. § 3.304 (f)(3). However, the Veteran's reported stressor of witnessing a shooting of a fellow soldier is not related to fear of hostile military or terrorist activity. As such, the Veteran's reported stressor must be corroborated by evidence beyond just his statements. Unfortunately, this evidence is lacking. Initially, the Board recognizes that the record reflects conflicting evidence as to whether the Veteran has a current diagnosis of PTSD. VA examination reports of record, dated August 2013 and April 2020, did not find a diagnosis of PTSD pursuant to the DSM-V to be warranted, but rather found the current diagnosis was major depressive disorder. VA treatment records also reflect that the Veteran was diagnosed with depressive disorder. Contrarily, a November 2018 psychological assessment report from a private psychologist stated that the Veteran had a diagnosis of PTSD as outlined by the DSM-V. As this private opinion provided adequate rationale as to its diagnosis and etiology, resolving reasonable doubt in his favor, the Board accepts that the Veteran currently has a diagnosis of PTSD. However, the Veteran's service treatment records and service personnel records do not corroborate the occurrence of his alleged in-service stressor. Furthermore, the Veteran never served in combat, was not diagnosed with any acquired psychiatric disorder on active duty, and his stressor does not relate to the fear of hostile military or terrorist activity. The service treatment records also do not show any complaints, treatment, or diagnosis of PTSD or any other acquired psychiatric disorder during service. In December 2013, VA attempted to verify the Veteran's asserted stressor based on his April 2013 claim. The U.S. Army and Joint Services Records Research Center (JSRRC) coordinator issued a memorandum of a formal finding of a lack of information required to verify stressors in connection with the Veteran's PTSD claim. The JSRRC's formal finding noted that a VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD, was sent to the Veteran in July 2013 but that he did not submit any event to concede a stressor. It further stated that the requested and reviewed personnel records and military treatment records were silent for any stressed event or the stressor. According to a February 2019 Board remand, it was determined that the Veteran should be afforded the opportunity to submit a statement in support of his claim for service connection with details of his claimed stressor. In February 2020, the Veteran was sent another VA Form 21-0781 so that he could provide additional details such as location, month, assigned barracks, events surrounding/leading up to the alleged incident, how the Veteran came to witness the alleged incident, and outcome for persons involved. The Veteran, however, failed to respond. In sum, the Veteran's claimed stressor event has not been corroborated, and, thus, his assertion of its occurrence alone is insufficient to support a grant of service connection. The Veteran has simply provided insufficient evidence to allow any meaningful research to be conducted into whether either of these conditions occurred. Additionally, there is no evidence beyond the Veteran's statements to suggest that these events occurred. Although he reported witnessing military stressors to the private psychologist, it was not the private psychologist's duty to verify such stressors, and the Veteran did not provide details sufficient to warrant an additional attempt to verify them by the RO. The Veteran's statements and testimony alone are not considered to be sufficient to establish the occurrence of a claimed in-service stressor, but rather must be corroborated by credible supporting evidence. See Cohen v. Brown, 10 Vet. App. 128 (1997). Clearly, the Veteran is competent to describe events which happened to him. But, in addition to evaluating competence, the Board has a duty to assess the credibility of the evidence of record. Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen, 10 Vet. App. at 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). Unfortunately, the Board finds that the Veteran's account of the alleged event is not corroborated by credible supporting evidence and, thus, could not support a grant of service connection for PTSD. As the Veteran fails to meet the requirements of service connection for PTSD, the claim is denied. Despite this finding, the Board concludes that the Veteran's currently diagnosed major depressive disorder is related to his military service. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303 (a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As stated above, a diagnosis of major depressive disorder was demonstrated by the competent and credible evidence of record. Again, the Veteran's service treatment records are silent for any complaints of, or treatment for, any psychiatric problems. Nevertheless, the Veteran attributes his acquired psychiatric condition to his military service. Thus, the question ultimately becomes whether the Veteran's currently diagnosed major depressive disorder had its onset during, or are otherwise related to, his military service. The record contains an October 2021 opinion from a private physician who, upon a comprehensive review of the Veteran's service and post-service medical records and lay statements, determined: The [V]eteran has had intermittent depressive episodes during his active duty service in the United States Army, beginning and recurring, consistently, since his discharge from active duty service. While in the Army, the [V]eteran developed behavioral disturbance, causing a deterioration in his capacity to function and leading to legal proceedings and a deterioration in his capacity to meet his military responsibilities. This is significant as this decline marks the sudden onset of behavioral disturbances, such as the [V]eteran experienced, are suggestive of the presence of mental illness. The private physician concluded that "[the Veteran's] depressive symptoms, anxiety, and disorganized thought began while he was on active duty service that has continued through the present day." Furthermore, the Veteran "was consistent in describing what while on active duty, he developed classic neurovegetative symptoms of depression... This was, more likely than not, the first depressive episode associated with his major depressive disorder." The private physician added this was evidenced by the Veteran's marked decline in his performance of his duties during service. In rendering this opinion, the private physician reviewed the Veteran's pertinent history, including his reported in-service psychiatric symptoms. In addition, a clear conclusion with a supporting rationale was provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ([A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.). Thus, after careful review of the record and consideration of all lay and medical evidence of record, and after affording all benefit of any doubt to the Veteran, the Board finds that the criteria for service connection for an acquired psychiatric disorder, other than PTSD, to include major depressive disorder, are met; and the claim is granted REASONS FOR REMAND TDIU The Board has granted service connection for acquired psychiatric disorder, other than PTSD, to include major depressive disorder in the instant decision; however, neither a disability rating nor an effective date have been assessed. As a claim of entitlement to TDIU is based on an analysis of the schedular rating of all service-connected disabilities, and the evidence of record suggests that the Veteran's acquired psychiatric disorder may affect his employability, this issue must be remanded to allow the RO to assign a disability rating for the Veteran's now service-connected acquired psychiatric disorder, other than PTSD, to include major depressive disorder before the claim for TDIU can be adjudicated. (Continued on next page) The matter is REMANDED for the following action: Readjudicate the appeal for entitlement to a TDIU. If the benefit sought is not granted, issue a supplemental statement of the case and allow the Veteran and his representative an opportunity to respond before the case is returned to the Board. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.