Citation Nr: 21007748 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 18-18 809A DATE: February 10, 2021 ORDER Entitlement to service connection for depression is granted. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, depression is at least as likely as not related to service. CONCLUSION OF LAW The criteria for service connection for depression are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active service from November 1985 to February 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified by virtual hearing before the undersigned Veterans Law Judge in August 2020. 1. Entitlement to service connection for depression The Veteran has testified that his psychiatric disorder was caused by stressors sustained during active service when he was deployed to Saudi Arabia during Operation Desert Storm. The Veteran has credibly testified to various stressors such as experiencing air raids sirens from SCUD missile attacks, confrontations with armed locals, and observing burned out vehicles and enemy bodies. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active 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 of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran has a diagnosis of a depressive disorder as noted in the August 2016 VA examination report and an August 2017 private mental health report. Thus, the first element of service connection is met. Second, the Board finds that there was an in-service injury. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Board has no reason to doubt the credibility of the Veteran’s testimony regarding the reported stressful incidents experienced during active service. The August 2017 VA examiner determined that the Veteran’s alleged stressors met Criterion A and it was related to the fear of hostile military or terrorist activity. Accordingly, the second element of service connection is met. Third, the Board finds that the evidence of record supports a finding that the depression is related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The August 2016 VA examiner concluded that the disability was less likely than not related to active service. Instead, the VA examiner found that his depression was related to his chronic physical health problems and not his reported stressors during active service. In contrast, the August 2017 private mental health examiner opined that the PTSD and depression were related to stressful events experienced during active duty. It appears that both VA examiners reviewed the relevant medical evidence and lay statements and reached opposite conclusions. Both examiners provided a supporting explanation for the opinions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the medical opinions and diagnoses in this case are at least in equipoise as to whether the Veteran’s depression is related to his active service. Accordingly, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for depression is warranted. REASONS FOR REMAND 2. Entitlement to service connection for PTSD is remanded. Regarding the Veteran’s claim for PTSD, remand is required for a VA examination and opinion. The Veteran’s reported stressors are due to his fear of hostile or terrorist forces. Service connection for PTSD requires (1) medical evidence establishing a diagnosis of the disorder, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link established by medical evidence between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-5). 38 C.F.R. § 3.304(f); 38 C.F.R. § 4.125(a). There are several avenues to document an in-service stressor, other than obtaining verification from the JSRRC or other government records repository. In cases of in-service PTSD diagnosis, combat service, or prisoner of war status a Veteran's stressor may be verified by lay evidence. 38 C.F.R. § 3.304(f)(1), (2), (4). Lay evidence of personal assault requires appropriate corroboration, and a stressor related to a Veteran's fear of hostile military or terrorist activity requires appropriate medical evidence. 38 C.F.R. § 3.304 (f)(3), (5). 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). The Veteran has credibly testified to various stressors such as experiencing air raids sirens from SCUD missile attacks, confrontations with armed locals, and observing burned out vehicles and enemy bodies. The August 2016 VA examiner determined that while the Veteran’s reported stressors met Criterion A for PTSD, the remaining symptomatology exhibited by the Veteran did not meet the full criterion for PTSD, therefore no diagnosis was present. Subsequent to the August 2016 VA examination report, the Veteran submitted an August 2017 private mental health report that shows the Veteran was diagnosed with PTSD due to his reported stressor events. However, private examiner is not a VA psychologist, VA psychiatrist, or a psychologist or psychiatrist contracted with VA. As such, VA cannot rely upon those findings that the Veteran's fear of hostile military or terrorist activity supports a PTSD diagnosis, and an updated VA examination is necessary for a VA psychiatrist or VA psychologist to opine on the matter in light of the private mental health report. The matters are REMANDED for the following action: Provide the Veteran with an appropriate examination to determine the etiology of his claimed PTSD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) First, the examiner must determine whether the Veteran has current diagnosis of PTSD. The examiner must comment on the findings and report of the private mental health report from August 2017. If not diagnosis of PTSD is warranted, the VA examiner must explain why. (b.) Second, if PTSD is diagnosed, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder had its onset in or is otherwise related to active military service. (c.) Third, if PTSD is diagnosed, provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) related to a stressful event in service or fear of hostile military or terrorist activity, including his reported stressors experiencing air raids sirens from SCUD missile attacks, confrontations with armed locals, and observing burned out vehicles and enemy bodies while deployed to Saudi Arabia during Operation Desert Storm. The opinion should address the Veteran's stressor contentions and his testimony at the 2020 Board hearing that he had suffered from psychiatric symptoms since he separated from service. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.