Citation Nr: 21012140 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 09-47 165 DATE: March 3, 2021 ORDER Service connection for an acquired psychiatric disorder (major depressive disorder and generalized anxiety disorder) is granted. Service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, his major depressive disorder and generalized anxiety disorder was aggravated by his service-connected cervical spine disability. 2. The Veteran has not been shown to have a diagnosis of PTSD conforming to the DSM-V at any time during the pendency of this claim. CONCLUSIONS OF LAW 1. The criteria are met for service connection for major depressive disorder and generalized anxiety disorder secondary to cervical spine disability. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1987 to March 1988, December 1990 to May 1991, and August 2004 to November 2004. He additionally had National Guard service from September 1987 to September 1999 and November 2001 to February 2005. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife testified at a Decision Review Officer (DRO) hearing in May 2010 and at a Board hearing in March 2012. Most recently, in May 2020, the Board remanded this matter for further evidentiary development. Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Secondary service connection is warranted where a claimed disability is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). This requires having evidence of (1) a current disability for which secondary service connection is sought; (2) a disability already service connected; and (3) competent evidence that the already service-connected disability caused or aggravated the additional disability for which service connection is sought. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent medical evidence, however, is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the 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. Major Depressive Disorder and Generalized Anxiety Disorder The Veteran asserts that he has an acquired psychiatric disorder related to service. Alternatively, he asserts that he has an acquired psychiatric disorder, namely major depressive disorder and generalized anxiety disorder, secondary to service-connected cervical spine disability. 38 C.F.R. § 3.310(a), (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Pursuant to the May 2020 Board remand, the Veteran underwent an August 2020 VA mental disorders examination. The Veteran was diagnosed as having major depressive disorder and generalized anxiety disorder. Following examination, the VA examiner provided an opinion regarding secondary service connection. He indicated that he could not determine a baseline level of severity of the Veteran’s psychiatric conditions based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by the Veteran’s service-connected condition cervical spine disability. He explained, “The Veteran’s reported and diagnosed mood and anxiety problems are considered to have worsened as his physical condition has worsened. The medical evidence provided does not measure this progression.” The examiner further stated, regardless of an established baseline, the Veteran’s claimed psychiatric conditions are at least as likely as not aggravated beyond their natural progression by his service-connected cervical spine disability. He explained, “The Veteran’s physical ailments caused by his military service are likely contributing to his worsening depression and anxiety, particularly due to his current occupation requiring him to exert physical activity such as lifting and moving heavy materials that increase and aggravate his neck pain.” The examiner clearly concedes there is a relationship or correlation between the Veteran’s service-connected cervical spine disability and his major depressive disorder and generalized anxiety disorder. The Board finds the August 2020 VA examination and opinion are entitled to significant probative weight because they consider the pertinent evidence of record and provide detailed rationale for the conclusions reached, relying on and citing to the records reviewed. Moreover, the VA examiner offered clear conclusions and reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). When resolving all reasonable doubt in the Veteran’s favor as required by 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, the Board finds that the evidence shows that his major depressive disorder and generalized anxiety disorder are aggravated by his service-connected cervical spine disability. Service connection for major depressive disorder and generalized anxiety disorder consequently is warranted. PTSD There are requirements for establishing entitlement to service connection for 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). Those requirements are (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f). If the evidence establishes that the 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. 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. 38 C.F.R. § 3.304(f)(3). “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. Although the evidence of record suggests a diagnosis of major depressive disorder and generalized anxiety disorder, the evidence does not indicate a current competent diagnosis of PTSD. Thus, the first prong to establish service connection for PTSD is not met. Furthermore, in November 2009, VA issued a formal finding of a lack of information required to corroborate stressor(s) associated with the claim for service connection for PTSD. Thus, the second prong to establish service connection for PTSD is not met. Although non-medically trained veterans are competent to testify as to matters of subject to lay observation, the question of whether a veteran has PTSD based on a claimed in-service stressor is the type of medical issue as to an internal, non-observable process as to which lay testimony is not competent. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“[I]t is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); 38 C.F.R. § 3.304(f) (specifically requiring medical evidence diagnosing PTSD). (Continued on next page) In summary, as there is not a current competent diagnosis of PTSD, the first element of service connection is not met, and service connection is not warranted on any basis. 38 C.F.R. § 3.304(f), 4.125(a); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.