Citation Nr: 21006311 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-05 983 DATE: February 3, 2021 ORDER The October 29, 2019 Board decision that dismissed the issue of entitlement to service connection for posttraumatic stress disorder (PTSD) is vacated. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD with major depressive disorder (MDD), is granted. FINDINGS OF FACT 1. On October 29, 2019, the Board issued a decision dismissing the issue of entitlement to service connection for PTSD, based on an erroneous finding that a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for that disability in a March 2019 rating decision. 2. The Veteran’s PTSD is related to his fear of hostile military or terrorist activity. 3. The Veteran’s MDD is proximately due to his PTSD. CONCLUSIONS OF LAW 1. The October 29, 2019, Board decision dismissing entitlement to service connection for PTSD is vacated as to this issue. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 2. The criteria for service connection for an acquired psychiatric disorder, to include PTSD with MDD, are met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.102, 3.304(f)(3), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from January 1965 to October 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2016, the Veteran testified at a video conference hearing before the undersigned. The Board remanded the appeal in June 2017 and October 2019. Partial Vacatur 1. The October 29, 2019 Board decision that dismissed the issue of entitlement to service connection for PTSD is vacated. In this case, the Board, on its own motion, hereby vacates the October 29, 2019, decision to dismiss the issue of entitlement to service connection for PTSD, as the Board’s award was based on the erroneous finding that the RO had already granted this disability in a March 2019 rating decision. 38 C.F.R. § 20.1000. Notably, the record indicates that the rating decision was not promulgated, and the RO indeed intended to deny the Veteran’s claim due to lack of verification of stressors. See July 2020 Deferred Rating. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD with MDD, is granted. The Veteran asserts that his psychiatric disorder is related to several stressful incidents (i.e. stressors) during service. See September 2005 Correspondence; March 2008 VA Form 21-4138; November 2010 VA Form 21-4138; September 2016 Board Hearing Transcript. The Board acknowledges the Veteran’s reported stressors that he witnessed a rifle range lieutenant being accidentally shot, the shooting at the Veteran by a fellow soldier on a rifle range, a live-fire drill in boot camp where another soldier had a mental breakdown and was almost shot, and the death of another soldier involved in a boating accident; however, the Board will focus its analysis on the most pertinent stressor during active service, for the purpose of adjudicating the claim, which involves the Veteran being in fear for his life. Id. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 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. See 38 C.F.R. § 3.304(f). A diagnosis of a mental disorder, including PTSD, must conform to the criteria of Diagnostic and Statistical Manual of Mental Disorders. 38 C.F.R. § 4.125. As is the case here, if a stressor claimed by the Veteran is related to his 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). The Board notes that “fear of hostile military activity” is defined to mean 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, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. Service connection may be established on a secondary basis for a disability which is shown to be proximately due to, the result of, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection (nexus) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the Veteran has current DSM-5 diagnoses of PTSD and MDD. See February 2018 Disability Benefits Questionnaire (DBQ); January 2020 DBQ. Thus, element one of service connection is met on a direct and secondary basis. Regarding in-service incurrence and credible supporting evidence of the reported in-service stressor, the Veteran asserts that his abovementioned stressors during active duty caused his PTSD. The Board notes that the Joint Services Records and Research Center issued a memorandum in which it determined that the evidence of record was insufficient to concede the stressors provided by the Veteran for any acquired psychiatric conditions due to military service. See December 2017 Administrative Decision. However, both VA examiners relate the Veteran’s PTSD to his service, with the February 2018 VA examiner, a VA-contracted psychologist, relating the Veteran’s PTSD specifically to a fear of hostile military or terrorist activity. See February 2018 DBQ; January 2020 DBQ. Furthermore, the Veteran has competently, consistently and credibly related the pertinent stressor, in detail, of being shot at during basic training in Fort Knox, where he was in a foxhole due to a training exercise when another service member began shooting at him, and as it got closer and closer to him he feared for his life, as this service member was specifically targeting him. See September 2005 Correspondence; March 2008 VA Form 21-4138; November 2010 VA Form 21-4138; September 2016 Board Hearing Transcript. The Veteran recalled that there was no follow-up with him regarding the incident and that he never saw that soldier again. See September 2016 Board Hearing Transcript at 6. He indicated during the hearing that he never reported this incident, as he did not want the stigma attached to him of being scared or frightened in the military. Id. at 9; August 2010 VA Form 21-4138. Additionally, his military personnel records confirm that he was at Fort Knox for basic combat training during this time. As such, the Board finds that the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service and is adequate to support a diagnosis of PTSD based on fear of hostile military or terrorist activity, and the second element is established for PTSD. For medical nexus regarding PTSD, the Veteran presented for a VA examination in February 2018. The Veteran was diagnosed with PTSD. The VA examiner opined that the Veteran’s PTSD was related to service and noted the Veteran’s other psychiatric conditions were merely symptoms of and accounted for by the Veteran’s PTSD. Thus, the third element is established for PTSD. The Board finds the medical opinion highly probative, as the record was duly reviewed, the Veteran’s symptoms and history were considered, and the opinion was provided based on medical knowledge and training. As such, element three for direct service connection is established, and service connection for PTSD is warranted. See 38 C.F.R. §§ 3.102, 3.303, 3.304(f)(3); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). For medical nexus regarding MDD as secondary to now service-connected PTSD, the Veteran presented for a VA examination in January 2020 and was diagnosed with MDD. The examiner opined that the Veteran’s MDD was proximately caused by the Veteran’s PTSD, noting MDD was “an extension of the PTSD.” The February 2018 VA examiner rendered a similar conclusion, noting the Veteran’s depression was a symptom of his PTSD, but not a separate diagnosis. Affording him the benefit of the doubt, the Board finds that he is separately diagnosed with MDD that is secondary to his PTSD, and secondary service connection is established. 38 C.F.R. § 3.310.   In sum, for reasons and bases noted above, service connection for an acquired psychiatric disorder, to include PTSD with MDD, is granted. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.