Citation Nr: 21075656 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-19 882 DATE: December 21, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and post-traumatic stress disorder (PTSD), is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his acquired psychiatric disability is etiologically related to his active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1968 to October 1972, to include service in Vietnam. The Veteran attended a hearing before the undersigned Veterans Law Judge in March 2020. A transcript of the hearing is of record. This matter was previously remanded by the Board of Veterans' Appeals (Board) in April 2020. In June 2021, the Board denied the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and unspecified anxiety disorder. In July 2021, the Veteran's representative filed a motion for reconsideration of the June 2021 Board decision. The Board subsequently vacated the June 2021 decision in August 2021. As an initial matter, the Board notes that the issue on appeal has been recharacterized to include any potentially relevant acquired psychiatric disability claims raised in the record, to include anxiety, depression, and PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and PTSD The Veteran contends that he has a current acquired psychiatric disability that is related to his active military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The requirements for establishing a diagnosis of PTSD are codified in 38 C.F.R. § 3.304(f) and differ from those for establishing service connection generally. Service connection for PTSD requires that the record show: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) combat status or credible supporting evidence that the claimed in-service stressor actually occurred; (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in-service stressor. 38 C.F.R. § 3.304(f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM). See 38 C.F.R. § 3.304(f). For cases certified to the Board after August 4, 2014, a diagnosis of PTSD must be in accordance with the DSM-5. 38 C.F.R. § 4.125. If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that 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). For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. 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 Veteran. 38 U.S.C. §§ 5107; 38 C.F.R. §§ 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran had an examination for his acquired psychiatric condition in March 2014. The examiner stated that the Veteran's claimed stressors are adequate to support a diagnosis of PTSD, but the examiner opined that the Veteran did not meet the diagnostic criteria for a DSM-5 PTSD diagnosis. The examiner did note that the Veteran experienced symptoms including anxiety and mild memory loss. Additionally, the examiner noted that the Veteran exhibited signs and symptoms compatible with a diagnosis of alcohol use disorder according to the DSM-5. The examiner noted that the Veteran's alcohol use disorder was not related to his military service. The examiner stated that the Veteran's alcohol use disorder is a product of his own willful misconduct and that the Veteran had alcohol use disorder prior to service. In a March 2014 statement, the Veteran reported that he experienced sporadic rocket and mortar fire during his service in Vietnam. The Veteran further stated that he did not seek help earlier because he had "no clue" that he was "mentally sick". At the March 2020 Board hearing, the Veteran testified that he "worked on the flight line at night where 90 percent of the rockets would hit". He testified that he never knew that he had PTSD until he read a pamphlet explaining PTSD. Additionally, the Veteran reported that he was being treated for PTSD at a VA facility and that he takes medication for anxiety and insomnia. VA treatment records from January 2020 note a positive screen for PTSD. VA treatment records from July 2020 note a history of PTSD, alcohol use disorder, and tobacco use disorder. The Veteran was noted to be taking medication for PTSD symptoms. The Veteran had another examination for his acquired psychiatric disorder in September 2020. The examiner indicated that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-5 criteria. The examiner noted that the Veteran did have diagnoses of unspecified anxiety disorder and alcohol use disorder. The examiner opined that it was less likely than not that the Veteran's claimed PTSD was incurred in or caused by his claimed in-service stressors. The examiner noted that the Veteran reported to have witnessed rocket attacks while in Vietnam. The examiner further noted that the Veteran reported becoming aware of his mental health symptoms decades after his time in service. In 2014, the Veteran started treatment at a VA facility in Puerto Rico. The examiner noted a mental health examination performed in March 2014, which shows a diagnosis of alcohol use disorder. A diagnosis of PTSD was not rendered, and no trauma stressor was reported at the time. The examiner noted that, at present, the symptoms reported by the Veteran do not meet the criteria for the diagnosis of PTSD. The Veteran did not report symptoms associated with criterion B (intrusive symptoms) and C (avoidance of events or conversations to prevent memories about the stressor). Additionally, the examiner noted a psychology note signed on August 7, 2020, which shows a history of PTSD symptoms, alcohol use disorder, and tobacco use disorder. The note also states the Veteran was on PTSD medications. Based on the Veteran's report, he left his medication at his home in Puerto Rico when he relocated to Miami, FL. Therefore, the examiner concluded that he was not taking his medications at the time of aforementioned psychology consult. Moreover, the examiner noted that the Veteran did not recall the name of the medications he was taking. The examiner stated that it is unlikely for PTSD symptoms to cause functional impairment decades after experiencing a traumatic event. Furthermore, the examiner noted that the Veteran has a longstanding history of alcohol use disorder, a condition which criteria is currently met as the claimant continues experiencing cravings and consuming alcohol. The examiner stated that the symptoms reported by the Veteran, such as periods of anger, depression, shame, a lack of empathy, being emotionally distant from others, isolation, and a lack of motivation, anxiety, being easily startled, and chronic sleep disturbance, are explained by the diagnosis of unspecified anxiety disorder. The examiner indicated that this diagnosis is supported by a previous diagnosis of unspecified anxiety disorder and alcohol use disorder. The examiner concluded that since the criteria for the diagnosis of PTSD is not met, an association between the claimed condition and the military stressor reported cannot be established. Furthermore, the examiner opined that the diagnosed conditions unspecified anxiety disorder and alcohol use disorder are less likely than not incurred in or caused by the Veteran's military stressor reported. The examiner stated that even though the Veteran's medical records show a history of alcohol use disorder, there is no evidence of alcohol use disorder rendered while in service. Further, the examiner noted that there is also no evidence of an anxiety-related condition diagnosed during service. The examiner noted inconsistencies between the Veteran's report about childhood history and alcohol consumption. The examiner stated that the Veteran initially denied a history of childhood abuse, however, a mental health examination report from March 2018 indicates a history of emotional abuse from his father. Additionally, the examiner noted that the Veteran indicated that he had not become intoxicated with alcohol for at least 14 years. However, the Veteran was diagnosed with alcohol use disorder on March 14, 2014. The report also states that the Veteran started alcohol consumption prior to his time in service, a fact the Veteran also denied. The examiner further stated that based on the evidence and the Veteran's statements and inconsistencies about his pre-military and post-military histories, there is the possibility of overreporting of symptoms for a secondary gain. Therefore, the examiner concluded that the diagnosed conditions cannot be attributed to the reported in-service stressor. The Veteran submitted a private medical opinion from Dr. C.M. in November 2021. Dr. C.M. stated that the Veteran's psychiatric symptom presentation aligns with the DSM-5 diagnoses of PTSD, major depressive disorder, and alcohol use disorder. Dr. C.M. opined that it is at least as likely as not that the Veteran's PTSD, depression, and alcohol use disorder were caused by his reported in-service stressor of witnessing a rocket attack in Vietnam. Dr. C.M. noted that the Veteran was exposed to life threatening trauma, including both risk of death or injury as well as witnessing death or injury. Additionally, Dr. C.M. noted that while the Veteran was exposed to physical violence between his parents prior to service, no pre-existing psychiatric symptoms were noted on his entrance examination. Furthermore, Dr. C.M. disagreed with the September 2020 examiner, noting that the Veteran had a positive screen for PTSD on January 14, 2020, noting a score of 5, stating that this "indicates he endorsed symptoms in each of the PTSD criteria B-E." The Board finds that the Veteran's current acquired psychiatric disorder is at least as likely as not related to his reported in-service stressors. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. Here, the Board finds that the aforementioned evidence is sufficient to place the relevant evidence, at a minimum, in a state of equipoise as to whether the Veteran's current acquired psychiatric disorder was caused by his reported in-service stressors. Each of the opinions of record is supported by the underlying reasons for the conclusions reached. They are offered by competent medical professionals. While several are against the claim, one is decidedly for it. The Board finds that the approximate balance has been reached. Accordingly, the Board finds that service connection for an acquired psychiatric disorder is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, Associate 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.