Citation Nr: 21010037 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-39 262 DATE: February 24, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) and major depressive disorder is granted. REMANDED Entitlement to service connection for headaches is remanded. FINDING OF FACT The Veteran’s PTSD and major depressive disorder is related to fear of hostile military or terrorist activity during service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD and major depressive disorder have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from August 2006 to January 2007 and on active duty from February 2009 to February 2010, with service in Iraq. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA). In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Entitlement to service connection for an acquired psychological disorder. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). However, 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 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. “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. 38 C.F.R. § 3.304(f)(3). The Veteran underwent an extensive psychological evaluation by a VA treating psychologist in February 2018. The psychologist diagnosed PTSD and major depressive disorder. The psychologist noted that the Veteran had several traumatic experiences while serving in Iraq that met the criteria for a diagnosis of PTSD, which included learning about the death of a friend by suicide bomber, the suicide of another soldier, and the Veteran’s first experience with mortar fire being directed at the forward operating base. The psychologist did not discuss non-service-related experiences as potential bases for the diagnosed disorders, see February 2018 VA treatment records, and the psychologist’s conclusions are also supported by statements from the Veteran’s mother and sisters regarding a noticeable change in personality after he returned from Iraq. See February 2021 statements. Although the February 2018 VA treating psychologist did not use the phrase “fear of hostile military or terrorist activity,” it is clear from the evaluation that at least some of the Veteran’s experiences are related to such fear. Indeed, he testified that he feared for his life when he was deployed. See February 2021 Board hearing. Thus, the Board finds that the criteria in 38 C.F.R. § 3.304(f)(3) have been met and the Veteran’s lay statements have established the occurrence of the claimed in-service stressor. There are no opinions of record that contradict the February 2018 VA treating psychologist’s opinion that the Veteran’s PTSD and major depressive disorder are due to stressors in service. Thus, the Board finds that such disorders are related to fear of hostile military or terrorist activity during service, and service connection is warranted. REASONS FOR REMAND Entitlement to service connection for headaches. The Veteran testified that he started to have headaches in Iraq. He reported that his doctors told him it was related to his service or possibly related to his PTSD. See February 2021 Board hearing. It does not appear that the Agency of Original Jurisdiction (AOJ) attempted to schedule a VA examination for headaches. Because there are medical questions outstanding, remand for a VA examination or telehealth interview is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from May 2016 to the present. 2. After the above development is completed, the AOJ should arrange for a VA telehealth interview or examination of the Veteran to determine the nature and likely cause of any headache disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination or telehealth interview of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) For any headache disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either incurred in or otherwise related to the Veteran’s active duty service? Please explain why. (b.) For any headache disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran’s service-connected PTSD or major depressive disorder? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. 3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.