Citation Nr: 21012083 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 12-08 132A DATE: March 3, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD) and dysthymic disorder, is granted. FINDINGS OF FACT 1. There is no probative (meaning competent and credible) evidence independently corroborating the occurrence of the Veteran’s articulated stressors during his service to support a diagnosis of posttraumatic stress disorder (PTSD) owing to his service. 2. But that notwithstanding, it is just as likely as not his MDD and dysthymic disorder were the result of his service and that his amphetamine and cannabis dependence were caused or aggravated by his mental disorders. CONCLUSION OF LAW Resolving all reasonable doubt in the appellant’s favor, the criteria are met for entitlement to service connection for an acquired psychiatric disorder, including especially for MDD and dysthymic disorder and consequent amphetamine and cannabis dependence. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the military from August 1981 to September 1985. This appeal to the Board of Veterans' Appeals (Board) is from a February 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing concerning this claim in October 2016, and a transcript of the proceeding is of record. The Board remanded this claim in March 2018 for further development. Unfortunately, the Veteran died a relatively short time later, in December 2018, during the pendency of this claim. However, VA since has recognized his surviving spouse as a substitute claimant in this appeal to process this claim to completion. See May 2020 VA Appeal Notification Letter (acknowledging receipt and acceptance of her substitution as claimant). The Board remanded this claim again in August 2020 for still more development, including to ascertain all acquired psychiatric disorders the Veteran had during his lifetime, not just in terms of PTSD but also amphetamine dependence and cannibis dependence, and then, for each confirmed mental disorder, for an opinion concerning its etiology – particularly in terms of whether caused or aggravated by his military service or, if a psychosis, worthy of being presumed to have been incurred during his service. There since has been the required compliance – certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).   Entitlement to service connection for an acquired psychiatric disorder Before his unfortunate death, the Veteran contended that his mental illness (regardless of specific diagnosis) was the result of particularly traumatic things that had happened to him during his military service (in claims for PTSD, specifically, these are referred to as “stressors”). In March 2018, the Board recharacterized his claim more broadly as for an acquired psychiatric disorder of some sort, including but not limited to PTSD, since he also had received other diagnoses of MDD, dysthymic disorder, amphetamine dependence, and cannabis dependence. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection for PTSD, in particular, requires medical evidence establishing a diagnosis of 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)), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptoms and a claimed in-service stressor. 38 C.F.R. § 3.304(f). Service connection for other acquired psychiatric disorders may be granted if due to disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C. §§ 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 an 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. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A psychosis will be presumed to have been incurred in service if it manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of the Veteran’s discharge from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). What constitutes a psychosis is defined in 38 C.F.R. § 3.384. Service connection may be granted, as well, on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The first requirement for service connection is a current disability. Notably, this requirement is satisfied when the claimant has the disability at the time the VA claim is filed or during the pendency of the claim, even if it later resolves prior to VA's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the Veteran filed his claim for PTSD in September 2007. Although an October 2007 treatment record notes a “history of PTSD,” the first diagnosis based on the then-current DSM-IV criteria on record was in November 2007 of PTSD, depression, cannabis dependence, and amphetamine dependence. There is no affirmative indication on record that he was cured of or every fully recovered from these acquired psychiatric disorders. Each was considered an active diagnosis in November 2018, when he entered hospice. This is sufficient to satisfy the first requirement for service connection. Id. Regarding service connection for PTSD, specifically, the Veteran repeatedly reported witnessing the beating and death of two fellow servicemembers while in Okinawa, Japan. VA attempted to verify that reported stressor in February 2009 and April 2010 but was unable to. That is not the type of stressor in the several subparts of § 3.304(f) (subparts (1) through (5) exceptions) that does not require this independent corroboration. The Board must give due consideration to all pertinent medical and lay evidence, and in the service-connection context must consider the circumstances, conditions and hardships of the Veteran's service. 38 U.S.C. § 1154(a). In PTSD claims, however, absent one of the enumerated exceptions, lay testimony alone typically is insufficient to establish that a stressor occurred; instead, it must be corroborated by "credible supporting evidence." See Cohen v. Brown, 10 Vet. App. 128, 142 (1997). And here, unfortunately,   there is no probative evidence on record tending to corroborate the Veteran’s statements of that event in service. As such, service connection for PTSD is not warranted. However, in establishing entitlement to service connection for other acquired psychiatric disorders, the Veteran was competent to report factual matters of which he has first-hand knowledge. This includes events in service and symptoms readily identifiable to a layman, such as events during deployment or physical pain. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When assessing the credibility of lay evidence, the Board may consider internal consistency, facial plausibility, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Statements in pursuit of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth to, in turn, receive appropriate care. White v. Illinois, 502 U.S. 346, 356 (1992). Between 2007 and 2010, the Veteran repeatedly told his mental health providers that he experienced flashbacks and nightmares regarding the death of two members of his unit at the hands of fellow servicemembers during a short stay in Okinawa, Japan. His military personnel records reflect sea service, with several weeks of travel. He also reported symptoms connected to the death of several friends in Beirut in 1983, when they were in service together. His treatment records, particularly those diagnosing his conditions in November 2007 and April 2008, attribute his symptoms to stressors in service. He testified to the events, and the mental health symptoms they caused, during his hearing in October 2016. All of that is significant because, although service connection for PTSD requires objective verification to prove stressors occurred (again, absent one of the enumerated exceptions to this mandate), there is no such requirement regarding the other acquired psychiatric diagnoses at issue. Given the internal consistency of the Veteran’s reports, the fact that most were made to his mental health care providers in the course of treatment, the medical attribution of those reports to his symptoms, and the overall consistency on record, the Board finds sufficient, credible evidence of an in-service event to satisfy the second element of service connection. As for the third and final element of a successful claim, the opinion rather recently obtained in November 2020, on remand, found the required correlation (“nexus”) between the Veteran’s MDD and dysthymic disorder and his service – specifically, that each is as likely as not the result of the events in service he alleges occurred. In making this finding, the examiner cited the Veteran’s mental health treatment records, including statements he made to his providers regarding his symptom history. The examiner also concluded the Veteran had PTSD owing to those stressors in service, but, as already explained, the burden of proof for PTSD is a bit more in requiring objective confirmation of the claimed stressor. That notwithstanding, there was at least the required correlation of the MDD and dysthymic disorder with the Veteran’s service to the extent required to grant service connection for these other mental disorders. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). In sum, the opinion was provided by a VA clinician having the necessary education and training to provide a probative opinion on this determinative issue of causation, who also provided a detailed basis for her medical opinion based on her assessment of the relevant evidence in the claim file. These factors make her opinion competent and credible and, therefore, ultimately probative of the issue. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008). As such, the record establishes all elements of service connection regarding MDD and dysthymic disorder. Further, the November 2020 medical opinion found that the Veteran’s amphetamine and cannabis dependence – though apparently in remission when he filed his claim or thereabouts, nonetheless were the result of his MDD, PTSD, and dysthymic disorder. Thus, service connection also is warranted for that dependence since owing to the underlying mental disorder that is being attributed to the Veteran’s service. See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001) (explaining that Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder."). For these reasons and bases, and certainly when resolving all reasonable doubt in the Appellant’s favor, service connection is granted for MDD and dysthymic disorder and for secondary amphetamine and cannabis dependence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.