Citation Nr: 21010290 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 18-00 122A DATE: February 24, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT It is just as likely as not the Veteran has PTSD owing to his fear of hostile military activity while serving aboard the USS Arlington. CONCLUSION OF LAW Therefore, resolving all reasonable doubt in his favor, the criteria are met for his entitlement to service connection for PTSD. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to December 1970 and from July 1972 to December 1972. This appeal to the Board of Veterans’ Appeals (Board) is from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board denied this claim of entitlement to service connection for an acquired psychiatric disorder, inclusive of PTSD but also major depressive disorder and anxiety, and, in response, the Veteran appealed to the higher U.S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In June 2019, the Court issued an Order partially vacating the Board’s decision, to the extent it had denied this claim, and remanding this claim back to the Board for readjudication in compliance with agreement in a Joint Motion for Partial Remand (JMPR). In March 2020, the Board again denied the claim, and, in response, the Veteran again appealed to the Court (CAVC). In October 2020, the Court issued another Order again vacating the Board’s decision denying this claim and again remanding it back to the Board for readjudication in compliance with agreement in another JMPR.   Entitlement to service connection for an acquired psychiatric disorder, inclusive of PTSD, is granted. The Veteran contends that he has PTSD or other mental illness because of especially traumatic events (“stressors”) that occurred during his time in the military. More specifically, he contends there was constant fear of hostile military activity while stationed aboard the USS Arlington during the Vietnam War. There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Entitlement to service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (meaning in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Deck logs confirm the USS Arlington entered areas during the Veteran’s tour where there was hostile military activity. He also has the required diagnosis of PTSD. Therefore, the question for the Board is whether his PTSD is the result of that hostile activity during his service – in other words, whether there is this required correlation (i.e., link or “nexus”). See 38 C.F.R. § 3.304(f). In the JMPR that the Court most recently granted, the Board was directed to reconcile its finding that the Veteran had a current diagnosis of PTSD with its reliance on a May 2016 VA examination conversely finding that he did not have this required diagnosis. Upon further review of the record on appeal, the Board now finds that his later diagnosis of PTSD (which he received after that May 2016 VA examination) is sufficient to establish he has this claimed mental disorder, and because of his service, certainly when resolving all reasonable doubt concerning this in his favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.   A diagnosis of PTSD is presumed to be in accordance with the DSM criteria, including in terms of the adequacy or sufficiency of the claimed stressor. See Cohen v. Brown, 10 Vet. App. 128 (1997). Thus, to prevail in this appeal, there need only also be the required attribution of the Veteran’s PTSD to the hostile military activity that the deck logs of the USS Arlington confirm occurred while he was stationed aboard this ship off the Coast of Vietnam. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Veteran filed his claim for service connection for a mental disorder in October 2015, at which time he asserted that his ship came under enemy fire while serving in a combat zone off the coast of Vietnam, and that he feared for his life every day. The deck logs already mentioned confirm the USS Arlington entered a hostile fire pay zone during his tour aboard this ship; therefore, the Board finds his testimony concerning this to be both competent and credible – and, therefore, ultimately probative, with regards to establishing an in-service stressor. During the May 2016 VA examination, the Veteran claimed that he had witnessed U.S. ground troops engage in a firefight with the enemy, saw U.S. troops using flamethrowers to burn brush, and saw enemy soldiers crying and screaming while on fire. The examiner found those alleged stressors inadequate to support a diagnosis of PTSD on the premise the Veteran had experienced fear of hostile military or terrorist activity of the type contemplated by 38 C.F.R. § 3.304(f)(3). That examiner determined, instead, the Veteran had major depressive disorder that was not attributable to his service because he reported that his symptoms had begun, instead, in 2008 after his retirement from working with the Post Office. That VA examiner determined there was no clinical association between the Veteran’s then current depressive symptoms and the specific stressors that he had claimed to have experienced during his military service. A subsequent VA treatment note, however, dated in July 2016, so later that same year, indicates the Veteran had complained of symptoms such as depression, lack of energy, and impaired concentration. The attending clinician surmised the Veteran had mild, recurrent major depressive disorder and PTSD symptoms. But, at that time, the Veteran denied experiencing any direct combat, though, again, indicated that he nonetheless had spent time off the coast of Vietnam in a war zone. If the evidence establishes that a 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); see also 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d) (pertaining to combat Veterans). A finding that the Veteran engaged in combat with the enemy, however, requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality and does not apply to Veterans who served in a general “combat area” or “combat zone” but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). Prior to the amendment to the regulations, where a determination was made that a Veteran did not “engage in combat with the enemy,” or that the claimed stressor was not related to combat, the Veteran's lay testimony alone was insufficient to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996). In those cases, service records or other corroborative evidence were required to substantiate or verify the Veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994). Effective July 13, 2010, however, 38 C.F.R. § 3.304(f) was amended to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843-01 (July 13, 2010), codified at 38 C.F.R. § 3.304(f)(3). The amendment provides that, if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military activity, and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, then a Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service and there is no clear and convincing evidence to the contrary. Id. “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. The list of examples of such an event or circumstance specifically includes attack upon friendly military aircraft, vehicle-imbedded explosive devices, and incoming artillery, rocket, or mortar fire. Those revisions to § 3.304(f) are significant since, to reiterate, the USS Arlington’s deck logs confirm it was in a hostile fire pay zone area. The Veteran explains that he participated in “special warfare assignments,” but he would not elaborate on them because he says they were classified. The July 2016 evaluating clinician indicated that the information that the Veteran provided verbally was discrepant to the information on the paperwork that he had filled out. The Veteran verbally denied experiencing any trauma symptoms, which the clinician noted was inconsistent with the Veteran’s paperwork, on which he conversely stated that he had combat experience and saw wounded individuals. His paperwork, instead, indicated that he experienced military sexual trauma (MST), but, verbally, he denied experiencing any such trauma. As a result, this evaluating clinician surmised the Veteran was “either unwilling or does not endorse” any criterion A events that caused him distress and, thus, diagnosed recurrent major depressive disorder and anxiety not otherwise specified (NOS), as opposed to PTSD. In other words, the Veteran was found to be exhibiting what amounted to PTSD-like symptoms, but because he was unwilling to endorse any specific stressors, his treating clinician was unable to confirm this diagnosis and did not alternatively etiologically link the major depressive disorder and/or anxiety that was diagnosed to anything that had occurred during the Veteran’s service. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (requiring consideration of all diagnoses rendered, not just instead the condition specifically claimed). Notably, however, in a subsequent August 2016 treatment note, a VA clinician assessed the Veteran with mild, recurrent, major depressive disorder and PTSD. In other words, he was found to have the requisite PTSD diagnosis by that VA clinician – which, to reiterate, according to the holding in Cohen and its’ progeny, is presumably in accordance with the DSM criteria. In addition, the Veteran has submitted private medical treatment records showing he was admitted to the hospital more recently in October 2019 following two suicide attempts. In the medical notes, among other distressing life events, he explained that he has intrusive thoughts and nightmares about Vietnam. Also, in these records, the clinician noted the Veteran had been diagnosed with PTSD by VA. The private clinician also endorsed that the Veteran had a history of a traumatic event, that military combat was causing his intrusive thoughts, nightmares hyperarousal, avoidance behaviors, and mood or cognitive changes. Moreover, the clinician also confirmed that these symptoms were consistent with a PTSD diagnosis. While 38 C.F.R. § 3.304(f)(3) specifically requires a “VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirm[] that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor” the Board certainly finds an additional PTSD diagnosis attributing the Veteran’s reported symptoms to the same traumatic event during service to be probative and persuasive in establishing a nexus for service connection purposes. In summary, the Veteran now has credibly established an in-service stressor related to his fear of hostile military activity while stationed aboard the USS Arlington. This stressor was confirmed by a VA examiner in May 2016 to be adequate to support a diagnosis of PTSD relating to the Veteran’s fear of hostile military activity (in other words, the examiner confirmed a nexus could be established if the Veteran were to be found to have a PTSD diagnosis and symptoms relating to this stressor). Moreover, VA treatment notes in August 2016 (so, mere months after his VA examination) have established he, in fact, has a current PTSD diagnosis. This is also supported by probative evidence in the form of a later PSTD diagnosis by a private clinician.   Given the Veteran’s PTSD diagnosis by multiple clinicians, including most importantly a VA clinician, and given the Veteran’s credible reports of experiencing an in-service stressor that was confirmed by the deck logs of the USS Arlington, the Board finds that he now has met the requirements for establishing both the current disability and in-service event prongs of service connection. Moreover, his credibly described stressor event was confirmed by a VA examiner to be sufficient in establishing the PTSD diagnosis based on a fear of hostile military activity. This correlation (“nexus”) is also supported by probative, persuasive evidence from private treatment records confirming this link between the Veteran’s PTSD symptoms and his reported in-service stressor. Therefore, the Board finds he has established the required showing of PTSD owing to his service. Consequently, in this circumstance, the claim is granted rather than denied by resolving all reasonable doubt concerning this in his favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.