Citation Nr: 21074535 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 14-36 916 DATE: December 15, 2021 ORDER Service connection for an acquired psychiatric disorder is granted. FINDINGS OF FACT 1. The Veteran served on active duty from November 1965 to August 1969. 2. An acquired psychiatric disorder, diagnosed as depression, panic disorder without agoraphobia, and anxiety disorders, is etiologically related to active service; the criteria for posttraumatic stress disorder (PTSD) have not been met. CONCLUSION OF LAW An acquired psychiatric disorder was incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a procedural matter, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in May 2018. In August 2019, he was informed that the Board was unable to produce a transcript of the May 2018 hearing due to technical difficulties; he was provided the option to appear for another Board hearing. In August 2019, he elected to have another Board hearing; however, he failed to report to the August 2021 hearing. As he failed to appear for the rescheduled hearing, the case will proceed as though the request for hearing had been withdrawn. 38 C.F.R. § 20.704(d). Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection for PTSD requires three elements: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). As the Veteran's claim for PTSD is based on fear of hostile military or terrorist active, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD. 38 C.F.R. § 3.304(f)(3). Turning to the evidence, the first element of service connection a current disorder is met. The record reflects that the Veteran has received multiple psychiatric diagnoses. Specifically, he has been diagnosed with PTSD, depression, panic disorder without agoraphobia, and anxiety disorders. As the analysis for service connection for PTSD differs from that of other psychiatric disorders, the claim for service connection for PTSD will be addressed separately. Turning to the claim for PTSD, multiple private medical treatment providers have diagnosed PTSD; however, under the relevant laws and regulations, only a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted may confirm that the claimed stressor is related to a diagnosis of PTSD. To that end, at a November 2015 VA examination for PTSD, the Veteran reported that while serving aboard the USS Forrestal on July 29, 1967, he witnessed the aftermath of an explosion and fire which included being blinded by smoke and stepping on a corpse and putting dead sailors in body bags. The examiner opined that the Veteran did not meet the diagnostic criteria for PTSD under the DSM-V but rather diagnosed a major depressive disorder and unspecified anxiety disorder. The examiner found symptoms indicative of PTSD based on the Veteran's exposure to actual or threatened death by directly experiencing the traumatic event and witnessing the traumatic event in person; however, the examiner noted that the symptoms were not the product of fear of hostile military or terrorist activity. While the Veteran has submitted several private medical opinions in support of the appeal, for a stressor related to the Veteran's fear of hostile military or terrorist activity, a VA psychiatrist or psychologist or one contracted by VA is required to confirm that the claimed stressor is adequate to support a diagnosis of PTSD. There is not an opinion from a VA psychiatrist or psychologist confirming that the claimed stressor related to the Veteran's fear of hostile military or terrorist activity is adequate to support a diagnosis of PTSD. Therefore, the medical evidence does not support a claim for PTSD. Turning to the claim for psychiatric disorders other than PTSD, as noted above, the Veteran has been diagnosed with depression, panic disorder without agoraphobia, and anxiety disorders at different points throughout the appeal period. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to in-service incurrence, other than the stressor described above, there is no treatment, diagnosis of, or complaints of an acquired psychiatric disorder in the service treatment records (STRs). Nonetheless, as the Veteran has described psychiatric symptoms related to an in-service event, the second element of service connection for an acquired psychiatric disorder is met. As to a medical nexus between service and the current psychiatric disorders, the evidence is in equipoise. On one hand, a December 2011 VA examiner diagnosed the Veteran with major depressive disorder and anxiety disorder NOS. The examiner opined that the acquired psychiatric disorder was less likely than not incurred in or caused by service in the Navy. The examiner reasoned that the Veteran described depression and anxiety symptoms as having started around age 50 and indicated a difficult job loss and a difficult marriage that contributed to his depression and anxiety about 10 years previously. The examiner noted that the Veteran experienced a significant stressor in service, but reported that he felt he handled it well at the time and did not note significant mental health issues until 10 to 15 years previously. Additionally, the examiner indicated that when asked about the content of his anxious and depressive thoughts, the Veteran reported regret about not being more successful in life, not having more stable employment or a better retirement, and not being able to maintain a marriage. This evidence weighs against the appeal. A November 2013 VA examiner diagnosed the Veteran with major depressive disorder and opined that it was less likely as not proximately due to or the result of service-connected tinnitus as the Veteran reported that depression pre-existed the difficulties with tinnitus. The examiner noted that in the last 10 years as the Veteran's tinnitus had increased in severity, it could exacerbate depression but this was in the context of other significant psychosocial stressors (caring for aging parents, stress at his workplace, being let go from a job in which he received many good evaluations during the course of his employment). The examiner concluded that tinnitus could not be singled out as the root cause or only exacerbating force in the Veteran's experience of depression since there was a constellation of stressors occurring at once. This evidence does not support the appeal. A November 2015 VA examiner opined that the Veteran did not meet the diagnostic criteria for PTSD under the DSM-V but rather diagnosed major depressive disorder and unspecified anxiety disorder. The examiner opined that it was less likely than not that the exposure of the Veteran to the identified stressor event was directly related to the current psychiatric symptoms and diagnosed mental disorders. The examiner explained that the Veteran's current psychiatric symptoms were more likely a function of other biopsychosocial factors including caring for his elderly mother, financial stress, and dealing with medical problems. The examiner noted that when the Veteran was asked both specific and open-ended questions regarding his identified traumatic experience and his psychiatric symptoms, he did not report the number or intensity of the symptoms documented by private clinicians but reported symptomatology consistent with the diagnoses of his previous and current VA clinicians. This evidence weighs against the claim. On the other hand, in a September 2014 private diagnostic evaluation report, the clinician, J.W. PhD, diagnosed the Veteran with major depressive disorder, PTSD, and panic disorder with a history of agoraphobia. The clinician noted the Veteran's traumatic event onboard the USS Forrestal and reported that he had experienced intrusive thoughts since the incident. In a May 2015 private psychiatric intake assessment, the clinician, P.S., D.O., diagnosed the Veteran with major depressive disorder, panic disorder with agoraphobia, and PTSD. As to the psychiatric disorders other than PTSD, the clinician noted that he met the criteria for major depressive disorder with melancholic features and a panic disorder without agoraphobia. In December 2015, P.S., D.O., submitted a second opinion indicating that she had been treating that year. As to the psychiatric disorders other than PTSD, she opined that that more likely than not that depression since the event up until today was complicated by his undiagnosed unaddressed and untreated PTSD. In a January 2016 statement, the Veteran indicated that his condition did not start at age 50, but rather, his condition worsened as he got older. In a May 2018 Disability Benefit Questionnaire (DBQ), submitted by the Veteran, the clinician, J.A., MS, diagnosed a persistent depressive disorder but primarily addressed the criteria for PTSD. In a June 2018 private DBQ, submitted by the Veteran, the clinician, Z.G., LMHC, addressed the in-service event and noted that the Veteran began struggling with concentration issues and difficulties with intrusive thoughts and nightmares following the accident. The clinician indicated that the Veteran's symptoms had become progressively worse, and he was currently experiencing panic attacks and mild audio and visual hallucinations as well as heightened anxiety every day. This evidence weighs in favor of the claim. Although the private clinicians focused primarily on PTSD, the opinions discussed mental health disorders other than PTSD and broadly attributed them to service. Although there are multiple medical opinions both in favor of and against the appeal, this puts the evidence in equipoise. For these reasons, service connection for an acquired psychiatric disorder is warranted and the appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.