Citation Nr: 21073192 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-05 609 DATE: December 7, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include somatic stress and depressive disorder, is granted. FINDING OF FACT The Veteran's somatic stress and depressive disorder is at least as likely as not related to the service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability are met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2003 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a July 2021 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. The Veteran claims he has a psychiatric disability related to service and/or his service-connected disabilities. For the reasons discussed below, the Board finds service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection for posttraumatic stress disorder (PTSD) requires (1) medical evidence establishing a diagnosis of the condition in accordance with the provisions of 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In PTSD claims that are not combat-related, do not pertain to the fear of hostile military or terrorist activity, nor related to a Veteran's status as a prisoner of war, lay testimony alone is not sufficient to establish that a stressor occurred; it must be corroborated by "credible supporting evidence." 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128, 142 (1997). For certain chronic diseases, such as psychosis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The enumerated diseases include psychoses, but do not include PTSD or any other psychiatric or mental disorder that has been diagnosed in this case. As such, there is no presumption of service connection for any of the conditions at issue. See 38 C.F.R. § 3.384. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Board first notes that the Veteran is service-connected for several disabilities: migraine headaches, rated at 30 percent; cervical spine degenerative joint disease, 20 percent; degenerative disc disease of the lumbar spine, 20 percent; and right and left knee sprain residuals, each rated 10 percent. The existence of pain is encompassed by all of these ratings; and the combined total rating is 70 percent. Turning to the evidence, service treatment records (STRs) do not reflect any symptoms, diagnosis, or treatment for a psychiatric disability. Post service, an October 2012 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The examiner determined the Veteran's symptoms did not meet the criteria for PTSD. He was diagnosed with anxiety and personality disorder. It was opined the claimed psychiatric conditions were not related to service. It was reasoned that the Veteran overreports and exaggerates symptoms. It was noted the personality disorder is a condition that is pervasive and lifelong with an onset in childhood. Also, the anxiety was noted as more likely exacerbated by the personality disorder. A September 2020 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The examiner opined the Veteran's somatic symptom disorder was related to the service-connected disabilities. However, the examiner concluded the PTSD is not related to his service-connected conditions. It was noted the somatic symptom disorder is subsumed under the depressive disorder due to another medical condition diagnosis. It was reasoned, "the anxiety/depressive symptoms, and chronic pain/discomfort are significant barriers re: his functioning in multiple areas of life and significantly impact his ability to participate in activities of daily living." In a December 2020 addendum the VA examiner concluded that the Veteran has a PTSD diagnosis, a depressive disorder diagnosis and a somatic symptom disorder diagnosis. It was noted "although the symptoms overlap, these are three separate diagnoses." The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the Veteran's psychiatric disabilities, somatic symptom and depressive disorder, are related to service. Initially the Board notes the Veteran is not seeking service connection for PTSD. During the July 2021 Board hearing the Representative specifically stated the Veteran was never requesting PTSD as the Veteran's claim has always been for anxiety. As such, the Board finds a remand is not warranted to address a VA opinion based on PTSD. Furthermore, the Board is finding somatic symptom disorder, is subsumed under the depressive disorder, as noted in the September 2020 VA examination. If the Veteran wishes to add PTSD to the psychiatric claims, he may file a supplemental claim as instructed in the correspondence attached to this decision. As there is a positive opinion relating the Veteran's somatic symptom disability to service, specifically the service-connected disabilities because they produce pain, and the examiner concluded the somatic symptom disorder is subsumed under the depressive disorder, the Board finds service connection is warranted. Accordingly, service connection for an acquired psychiatric disability, to include somatic stress and depressive disorder, is granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jackman, Bridget 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.