Citation Nr: 21006044 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-34 209 DATE: February 3, 2021 ORDER Entitlement to service connection for post-traumatic stress disorder (PTSD), to include symptoms of anxiety and depression, is granted. Entitlement to service connection for an acquired psychiatric disorder, to include an adjustment disorder with anxiety and depressed mood, is denied. FINDINGS OF FACT 1. The Veteran’s PTSD is related to his active duty service. 2. The Veteran does not have an acquired psychiatric disorder, to include an adjustment disorder with anxiety and depressed mood, rather, symptoms of such are part and parcel of his PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for acquired psychiatric disorder, to include an adjustment disorder with anxiety and depressed mood, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1966 until his honorable discharge in May 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2015, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. In a May 2018 decision, the Board denied the Veteran’s claim for service connection for PTSD and acquired psychiatric disability. The Veteran subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In November 2018, the parties to the appeal filed a Joint Motion for Remand (Motion). That motion was granted, and the Court vacated the Board’s decision and returned the matter to the Board for further consideration. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, 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). To establish a right to compensation for a present disability, a Veteran must show: (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 – the so-called “nexus” requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD in conformance with the DSM criteria; (2) a link, established by medical evidence, between a Veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). If it is established through military citation or other supportive evidence 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). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C. § 1154(b) requires that the Veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If VA determines either that the Veteran did not engage in combat with the enemy or that the Veteran did engage in combat, but that the alleged stressor is not combat related, the Veteran's lay testimony, by itself, is generally not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the Veteran's testimony or statements. However, corroboration of every detail of a claimed stressor, including the Veteran's personal participation, is not required; rather, a Veteran only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure. See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (quoting Suozzi v. Brown, 10 Vet. App. 307 (1997)). In other words, the Veteran's presence with the unit at the time such attacks occurred corroborates his statement that he experienced such attacks personally. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). On July 13, 2010, VA amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. This revision added to the types of PTSD claims that VA will accept through credible lay testimony alone as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. The primary effect of the amendment of 38 C.F.R. § 3.304(f) was the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." The regulation states: 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. 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. The final requirement of 38 C.F.R. § 3.304(f) is medical evidence of a nexus between the claimed in-service stressor and the current disability. However, such after-the-fact medical nexus evidence generally cannot also be the sole evidence of the occurrence of the claimed stressor. Moreau, 9 Vet. App. at 396.Furthermore, in deciding whether service connection is warranted for a disability, 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 (2014); 38 C.F.R. § 3.102 (2018); 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 of the matter, the benefit of the doubt will be given to the Veteran. Id. 1. Entitlement to service connection for PTSD. 2. Entitlement to service connection for an acquired psychiatric disorder, to include an adjustment disorder with anxiety and depressed mood. The Veteran asserts that he has PTSD as a result of various events that took place during his active duty service in Vietnam, including a furnace explosion, a wood pile accidence, and combat during the Tet Offensive. The Veteran obtained treatment through the VA and a veterans’ center. He was treated by Dr. D.H. and was diagnosed with PTSD. His PTSD symptoms include anxiety, depression, and anger. The Veteran has sought treatment from Dr. D.H. for several years and has participated in therapy with Dr. D.H. over that time period. Although he has sought treatment with VA and has undergone VA examinations for his PTSD, it is clear that Dr. D.H. has a better picture of the Veteran’s mental health. While there is no “treating physician” rule applicable to VA claims, the Board nevertheless recognizes the unique relationship that can be formed between doctor and patient, which may, as is the case here, lead the Board to find statements from Dr. D. H. to be inherently credible and probative. Dr. D.H. has stated that he had access to the Veteran’s military and VA records in addition to his own treatment records. As such, the first element of service connection has been met. The July 2011 VA examination diagnosed the Veteran with adjustment disorder with anxiety and depressed mood and personality disorder. The September 2015 addendum opinion diagnosed the Veteran with adjustment disorder with anxiety and depressed mood not related to service and not worsened by service, and a possible personality disorder. The November 2017 VA examination diagnosed the Veteran with unspecified personality disorder. Personality disorders are not considered to be diseases or injuries subject to VA compensation benefits. The Board is not finding that the Veteran does not have anxiety or depression, but rather that they are part and parcel with his PTSD diagnosis. Thus, in granting service connection for PTSD, any initial or subsequent rating action will take into consideration these symptoms. To this extent, the Veteran’s claim is granted. To the extent that there remains a contention that anxiety and depression symptoms are etiologically related to injury or disease in service, the weight of the competent and probative evidence does not support such. In a September 2011 rating decision, the RO conceded that the Veteran’s lay testimony was adequate to establish the occurrence of his claimed stressors regarding the furnace and wood explosions. Dr. D.H. has described how the Veteran has had nightmares and flashbacks due to the stressors and relives the events. See Private Treatment Notes. The Veteran also avoids similar stimuli and responds with numbness. Id. As a result, the second and third elements have been met and service connection for PTSD is granted. The Board need not address the Veteran’s assertions regarding the Tet Offensive stressors as service connection is granted based on the explosions alone. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s acquired psychiatric disorder claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Johnston, 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.