Citation Nr: 21012129 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-24 254 DATE: March 3, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his anxiety disorder with subthreshold PTSD symptoms is at least as likely as not related to his service in Vietnam. CONCLUSION OF LAW The criteria for service connection for anxiety disorder with subthreshold PTSD symptoms are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1971 to October 1973. The Veteran died in November 2020. Appellant is the surviving spouse and substitute claimant in this appeal. See 38 U.S.C. § 5121A. As such, she brings the current claim without the restrictions imposed by 38 U.S.C. § 5121. Appellant is a properly substituted claimant and is prosecuting this claim as such and not for accrued benefits purposes under older, less favorable laws. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2019, a hearing was held before the undersigned Veterans Law Judge. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depressive disorder The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depressive disorder. To establish service connection, the evidence must generally show (1) a present disability, (2) an 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d).  There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). In order to be entitled to service connection for PTSD, there must be medical evidence of PTSD, medical evidence that establishes a link between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis is warranted when it is shown that a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. This includes disabilities aggravated or made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Pursuant to 38 U.S.C. § 1110 and 38 C.F.R. § 3.310(a), when aggravation of a Veteran’s non-service-connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See Allen, 7 Vet. App. at 448. The Board notes that the United States Court of Appeals for Veterans Claims (CAVC) has noted that conditions may wax and wane in severity, and that a medically ascertainable incremental increase in disability, may meet the definition of ”disability” – ”the impairment of earning capacity due to disease, injury, or defect.”  Ward v. Wilkie, 31 Vet. App. 233, 239-40 (2019).  The Board must assess the credibility and weight of evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth at 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990);  Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran and Appellant contend that the Veteran is entitled to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depressive disorder. However, the record does not indicate that the Veteran was diagnosed with PTSD, therefore 38 C.F.R. § 3.304(f) does not apply. The Veteran’s service treatment records are silent for any complaints, treatment, or diagnosis of a psychiatric disorder. Additionally, the Veteran’s October 1973 separation examination noted the Veteran as healthy, noting no depression or nervousness. However, the Veteran’s personnel records indicate a military occupation of clerk typist, as well as service in Vietnam from October 1972 to February 1973. Following active service, the Veteran’s medical treatment records indicate complaints and treatment for anxiety and depressive disorder. In August 2005, the Veteran’s medical treatment records note that the Veteran experienced chronic anxiety and depression. Additionally, the Veteran noted being treated for mental health disorders since 2000 by his general practitioner, who prescribed him Paxil. Also, the record indicates that the Veteran reported witnessing injured companies of Vietnamese, being fired upon, as well as post-service issues with driving, being in open spaces, and occasional nightmares. Prior to his death, the Veteran was diagnosed with generalized anxiety and depressive disorder. See, e.g., April 2015 VA Treatment Records. In connection with this claim, the Veteran underwent a VA examination in April 2015, where the examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination. During the exam, the Veteran, once again, described traumatic experiences while he served in Vietnam, such as being threatened by an officer, feeling like a “sitting duck,” being fired upon while helping an aircraft that was stuck, and seeing companies of injured Vietnamese. The VA examiner determined that these stressors were adequate to support the diagnosis of PTSD, but the Veteran did not meet the necessary criteria to be diagnosed with PTSD. However, the VA examiner diagnosed the Veteran with an unspecified depressive disorder with anxious distress but did not provide a medical opinion for the diagnosis. In July 2016, the Veteran submitted a lay statement further describing his experiences while serving in Vietnam. The Veteran stated that although his job title was clerk typist, his duties included prioritizing the boarding of passengers on airplanes while stationed at an airport in Pleiku, Vietnam. The Veteran further explained that while performing these duties at the airport, it was not uncommon to be fired upon. In support of this claim, the Veteran described one situation where cargo was stuck on an airplane and while assisting in the removal of the cargo, he was fired upon and had to run to the “dugouts for cover.” And a separate incident where the trailer he lived in was hit by a mortar, requiring him to move to another building. He further claimed to witness soldiers “being boarded on the airplane which were missing body parts, were mangled and burned.” The Veteran went on to further describe how these in-service experiences have affected his post-service life. The Veteran described experiencing nightmares, memory loss, the inability to drive due to fear, and many other psychological conditions. In a December 2016 letter, the Veteran’s treating VA psychologist indicated that the Veteran has a current diagnosis of an anxiety disorder with subthreshold PTSD symptoms and opined that the diagnosis is as likely as not etiologically related to service. However, the VA psychologist failed to provide further rationale for the positive nexus opinion. Additionally, the Veteran’s March 2019 private medical records indicate that the Veteran’s anxiety disorder is related to his general medical conditions, including his service-connected diabetes mellitus. See May 2019 Medical Treatment Record - Non-Government Facility. In June 2019, during a hearing before the undersigned Veteran’s Law Judge, the Veteran and Appellant described that Veteran’s symptoms related to his psychiatric disorder. The Veteran testified that while in Vietnam he witnessed bodies that were “shot up.” Also, the Veteran described experiencing night sweats, as well as nightmares where he is yelling and fighting in Vietnam, and another where his daughter is shot by Vietnamese soldiers. The Veteran also testified to having difficulties in open spaces, as well as feeling helpless when driving on the interstate. In support, Appellant noted that she drives the Veteran everywhere now because of his anxiety, and that his anxiety would cause him to freeze in the car and lie on the floorboards. Following a Board remand, the Veteran was provided an additional VA medical opinion in April 2019, where the examiner reviewed the claims file. The examiner noted that the Veteran has reported nightmares of events in Vietnam that he did not experience, symptoms of anxiety/depression have been described in more general or non-service-related terms, as well as the Veteran’s service treatment records being silent for mental health treatment. Based on the listed evidence, the examiner opined that the Veteran’s unspecified depressive disorder with anxious distress is less likely as not due to military service. The examiner further opined that some of the Veteran’s complaints have been related to his time in Vietnam, however there is not overwhelming evidence to suggest that his anxiety and/or depression symptoms are due to Vietnam, or other events in the service. The examiner also opined that the Veteran’s anxiety and depression were not either caused by, or aggravated by, his diagnosed diabetes. On review of the record, the Board finds that the April 2019 VA examiner’s opinion on direct service connection for a psychiatric disorder, to include PTSD, anxiety, and depressive disorder is flawed. The examiner acknowledged the Veteran’s complaints regarding in-service traumatic events, but states that there is not “overwhelming” evidence to suggest that his anxiety and/or depression symptoms are due to Vietnam, or other events in the service. However, the VA examiner applied the incorrect standard. Evidence does not need to be overwhelming in order to determine the etiology of a condition, the evidence must only be equipoise, or as likely as not etiologically related to service. Also, the examiner failed to discuss the letter provided by the Veteran’s treating VA psychologist diagnosing the Veteran with an anxiety disorder with subthreshold PTSD symptoms that is as likely as not etiologically related to service. On the other hand, the Veteran and Appellant have presented two opinions in support of finding service-connection for his acquired psychiatric disorder. The Veteran’s treating VA psychologist specifically stated that the Veteran suffers from an anxiety disorder with subthreshold PTSD symptoms that is as likely as not etiologically related to service. And the April 2019 VA examiner’s opinion stated that there is at least some evidence in support of finding that the Veteran’s anxiety disorder is related to his service in Vietnam. Additionally, the Veteran and Appellant have provided consistent evidence of his complaints and treatment for anxiety, as well as consistent statements describing his traumatic experiences in Vietnam. Also, the Veteran explained that when he was young, he attempted to ignore his psychiatric disorder symptoms, which explains the gap in his post service treatment for an acquired psychiatric disorder. The Board finds no evidence of record impeaching the Veteran’s lay statements in which he describes his current symptoms, their onset, and his experiences in Vietnam. Overall, given the deficiencies in all of the opinions, the Board finds that the opinion against finding a nexus between the Veteran’s service and his anxiety disorder are not more persuasive than the positive nexus opinion. The positive nexus opinion was rendered by competent professional who treated the Veteran on a consistent basis, and in conjunction with the evidence of record, is legally sufficient to provide a basis for an award of service connection for an acquired psychiatric disorder, diagnosed as an anxiety disorder with subthreshold PTSD symptoms. Resolving reasonable doubt in favor of the Veteran, the Veteran’s anxiety is as likely as not related to the Veteran’s service in Vietnam. See Wise, 26 Vet. App. at 531 (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”) The claim, therefore, is granted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.