Citation Nr: 21010043 Decision Date: 02/24/21 Archive Date: 02/23/21 DOCKET NO. 14-12 228 DATE: February 24, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is granted. Entitlement to service connection for psychosis or mental illness for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C. § 1702, is dismissed. FINDINGS OF FACT 1. The Veteran’s PTSD and major depressive disorder is related to fear of hostile military or terrorist activity during service. 2. The Board’s grant of service connection for an acquired psychiatric disability, to include PTSD and major depressive disorder renders the issue of eligibility for treatment for psychosis or mental illness moot. CONCLUSIONS OF LAW 1. 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). 2. In light of the Board’s grant of service connection for an acquired psychiatric disability, to include PTSD and MDD, the Veteran’s claim of entitlement to service connection for psychosis or mental illness for the purpose of establishing eligibility for treatment is dismissed as moot. 38 U.S.C. §§ 1702, 7105(b)(2) (2012), (d)(5); 38 C.F.R. § 20.204 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2003 to September 2003 and from December 2005 to June 2006 with service in Iraq. He had additional service in the Air National Guard. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. These matters were remanded by the Board in January 2018 for development and have been returned to the Board for appellate review. 1. Entitlement to service connection for an acquired psychiatric disability is granted. 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 filed a September 2011 claim for service connection for PTSD. See September 2011 VA Form 21-526. He reported that during his time in service, he would have to be on top of bunkers to operate special radars, which was target of most of their enemies. Id. The Veteran reported that he spent more than 12 hours a day in this unsafe place and was always aware he was the target of many. He described a May 2006 situation that most scared him was when a mortar came from outside of the base and a system was activated which impacted with the mortar and destroyed it into pieces. The Veteran stated that the situation added more stress to the stress he was already experiencing because the nature of his exposure. Id. In a September 2011 statement in support of claim, the Veteran reported that while in service he always felt threatened by daily attacks from their enemies and experienced nearby explosions. See September 2011 statement in support of claim. The Veteran’s service personnel records indicate that his military occupational specialty (MOS) was aerospace control and warning systems journeyman. See Form DD-214. Further, his decorations, medals, badges, citations and campaign ribbons awarded include Iraq Campaign Medal and Operation Iraqi Freedom. Id. The Veteran’s service treatment records ( STRs ) include a May 2006 post-deployment health assessment, wherein the Veteran reported feeling down, depressed, or hopeless and having nightmares, being constantly on guard, watchful, or easily startled, and feeling detached because of an experience that was frightening, horrific, or upsetting. A May 2006 STR PTSD checklist showed the Veteran reported repeated disturbing memories, thoughts, or images of a stressful military experience; feeling very upset when something reminded him of a stressful military experience; avoiding activities or situations because they remind him of a stressful military experience; and having difficulty concentrating. By contrast, a January 2012 VAMC hospital discharge summary indicates the Veteran was hospitalized for recurrent suicidal thoughts since his military discharge and he reported that in the military he was close to explosives and saw combat. Significantly, VA psychiatric Dr. R.O. diagnosed the Veteran with PTSD and major depressive disorder. As the January 2012 diagnosis from the VA psychiatrist was provided prior to the May 2013 release of the DSM-5, the Board presumes that it was made in accordance with the DSM-IV criteria. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Moreover, in a May 2014 medical report, private Dr. C.Q. indicated the Veteran has diagnosed major depression and PTSD and opined that the Veteran’s psychiatric disorders are more probably than not related to his military service. See May 2014 private medical report. Although the January 2012 VA psychiatrist 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 has reported fearing for his life when he was deployed because of daily attacks from enemies and explosions. See January 2012 VAMC discharge summary and September 2011 statement in support of claim. 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 probative opinions of record that contradict the January 2012 VA psychiatrist or May 2014 private opinions that the Veteran’s PTSD and major depressive disorder are due to stressors in service. Thus, affording the Veteran the benefit of any reasonable doubt, the Board finds that his psychiatric disability is related to fear of hostile military or terrorist activity during service, and service connection is warranted. 2. Entitlement to service connection for psychosis or mental illness for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C. § 1702, is dismissed. The provisions of 38 U.S.C. § 1702 allow for service connection solely for eligibility for medical treatment for mental illness under certain conditions. Under 38 U.S.C. § 1702 (a), any veteran of World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before July 26, 1949, in the case of a Veteran of World War II, before February 1, 1957, in the case of a veteran of the Korean conflict, before May 8, 1977, in the case of a Vietnam era veteran, or before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service, for the purposes of eligibility to Chapter 17 benefits. 38 U.S.C. § 1702. In addition, under 38 U.S.C. § 1702(b), any veteran of the Persian Gulf War who develops an active mental illness (other than psychosis) shall be deemed to have incurred such disability in the active military, naval or air service if the disability develops (1) within two years after discharge or release from active service, and (2) before the end of the two-year period beginning on the last day of the Persian Gulf War. 38 U.S.C. § 1702(c) specifies that there is no minimum length of active-duty service required for presumptive eligibility for psychosis and mental illness under this section. For purposes of 38 U.S.C. § 1702, the term psychosis is defined as including brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. 38 C.F.R. § 3.384. The regulations do not define mental illness for the purposes of 38 U.S.C. § 1702. For the reasons explained above, the Board has granted entitlement to service connection for an acquired psychiatric disability, to include PTSD and major depressive disorder. Therefore, consideration for treatment purposes of whether the Veteran should be deemed to have incurred a psychiatric disorder in active service on the basis that he developed an active psychosis or mental illness within two years after discharge or release from active service is no longer warranted. The appeal as to this issue is dismissed as moot. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.