Citation Nr: 21075022
Decision Date: 12/17/21	Archive Date: 12/17/21

DOCKET NO. 20-01 508
DATE: December 17, 2021

ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and unspecified depressive disorder with anxious distress, is granted.

FINDING OF FACT

The evidence of record establishes a link between the Veteran's acquired psychiatric disorder, to include PTSD, MDD, and unspecified depressive disorder with anxious distress, and an in-service stressor.

CONCLUSION OF LAW

The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, MDD, and unspecified depressive disorder with anxious distress, have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service from August 1987 to March 2010.

This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated May 2018 issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed.

The appellant testified at a November 2021 video hearing with the undersigned Veterans Law Judge. This decision is being made under the "one-touch" program as it grants the benefit sought. A transcript of the hearing will be associated with the claims file at a later time. 

The Veteran originally asserted in his February 2018 claim to benefits that he claimed entitlement to service connection for PTSD and MDD. Records show the Veteran also has a diagnosis of unspecified depressive disorder with anxious distress. Since the Veteran is requesting benefits for multiple mental health conditions, the claim cannot be limited to only one psychiatric disorder but rather expanded to include all the Veteran's mental health disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). As a result, the claim now encompasses all of the Veteran's mental health disabilities.

Service Connection

Service connection for an acquired psychiatric disorder has unique evidentiary requirements. It generally 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 actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997).

When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, MDD, and unspecified depressive disorder with anxious distress

With consideration of the above described regulations governing acquired psychiatric disorder claims, the Board finds the evidence, when considered in a light most favorable to the Veteran, warrants a finding of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, MDD, and unspecified depressive disorder with anxious distress.

The first and most fundamental requirement for any service-connection claim is the existence of a current disability. 38 U.S.C. §§ 1110, 1131; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). VA requires a diagnosis that conforms to The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), to compensate for a psychiatric disability. Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 401 (2020). An April 2018 VA examiner provided a diagnosis of unspecified depressive disorder with anxious distress. See PTSD Disability Benefits Questionnaire (DBQ) dated April 2018. A July 2019 mental health counseling note contained DSM-5 conforming diagnoses of chronic PTSD and recurrent, moderate MDD. Therefore, the Board finds that the Veteran has satisfied the first prong of service connection, the existence of a current disability.

Regarding the second element, the Veteran reported the following stressors: he was stationed at forward observation posts and close to enemy lines; he received incoming enemy fire; he was exposed to the wounds and traumatic amputations suffered by friendly and enemy combatants; he was exposed to the corpses of friendly and enemy personnel; and he was exposed to the fear of the loss of his own life in war zone experiences. See Mental Health Treatment Plan Note dated January 2019. In his December 2019 Form 9, the Veteran further described his in-service stressors. He wrote,

Multiple tours in Kosovo and Bosnia and Herzegovina, I witnessed from multiple mass graves and pure destruction and all around the country not to mention the hunger and poverty. During my time in Iraq I lost at least 30 of my comrades...During 2003/2004 I slept in the morgue in Kirkuk Iraq. I saw many of my friends returning home in coffins...In addition to the death I witnessed multiple war crimes...

A rating decision in May 2018 conceded the Veteran's in-service stressors. After careful consideration of the evidence of record, the Board finds the Veteran's reports are consistent with the time, place, and circumstances of his service. The Veteran's reports of these in-service stressors are credible. Accordingly, the Board finds that the Veteran has satisfied the second element, an in-service combat stressor. 38 C.F.R. § 3.304(f)(2).

Finally, with respect to the third requirement, evidence of a link between current symptomatology and the claimed in-service stressor during his military service, the Board finds sufficient credible evidence which establishes this nexus. The Veteran underwent a VA examination for PTSD in April 2018. In a May 2018 addendum opinion, a clinical psychologist provided a negative nexus opinion for the Veteran's acquired psychiatric claim. The examiner also determined that the Veteran did not have a diagnosis of PTSD which conformed to the DSM-5.

In a March 2019 Notice of Disagreement (NOD), the Veteran wrote, "Veteran has been diagnosed with PTSD by a VA psychiatrist in Georgia and Dallas and DC...Additionally, Veteran was given a service dog over a year and a half ago to help him cope with situations that make him anxious."

In his December 2019 Form 9, the Veteran wrote,

The [April 2018] examination began with a threatening statement. All examinations were completed according to his guidance. At no time this doctor asked me for any information relating to my combat experience and or any detail in the matter. He did not want to be bothered, but was rather focusing on getting me out the door. No question was asked about anything that I had witnessed during my combat tours and or during my time in the military.

The Board finds the opinion of the May 2018 clinical psychologist was based on an incomplete factual premise because he incorrectly determined that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-5. However, as discussed above, there were multiple notations in the Veteran's medical treatment records of diagnoses of PTSD that conformed to the DSM-5. Furthermore, there were multiple examination inadequacies as reported by the Veteran in his December 2019 Form 9. A medical opinion based on an inaccurate or incomplete factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the Board finds that the opinion of the May 2018 clinical psychologist is not probative.

In a January 2019 VA mental health treatment record, the VA psychologist stated the Veteran's had chronic PTSD following military combat. This satisfies the requirements at 38 C.F.R. §3.304(f)(3) for a confirmed stressor for PTSD and also serves as nexus evidence to establish the third element of service connection.

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As the Veteran has a current disability of an acquired psychiatric disorder, to include PTSD, MDD, and unspecified depressive disorder with anxious distress, and credible evidence that the claimed in-service stressors occurred, and medical evidence linking the two, the Board finds that the Veteran's acquired psychiatric disorder, to include PTSD, MDD, and unspecified depressive disorder with anxious distress, was due to his in-service stressors. Thus, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD, MDD, and unspecified depressive disorder with anxious distress, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. The claim is granted.

 

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Minock

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.