Citation Nr: 21012403 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-45 407 DATE: March 4, 2021 ORDER Entitlement to service-connection for a post-traumatic stress disorder (PTSD) is denied. Entitlement to service connection for unspecified depressive disorder with anxious distress is granted. FINDINGS OF FACT 1. The preponderance of the evidence does not show that the Veteran has a current diagnosis of PTSD in accordance to DSM-IV or DSM-V. 2. The Veteran’s acquired psychiatric disorder diagnosed as unspecified depressive disorder with anxious distress is etiologically related to the Veteran’s service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for unspecified depressive disorder with anxious distress have been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1985 to May 1985. He had additional service in the Kentucky Army National Guard. The Board previously remanded this matter in August 2017 and July 2020. The Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). VA will also grant service connection on a secondary basis. Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Establishing service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (under the criteria of American Psychiatric Association’s 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. § 4.125. There generally must be independent evidence to corroborate the Veteran’s statement as to the occurrence of the stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The PTSD regulations include provisions pertinent to Veterans with combat-related stressors, stressors founded on fear of hostile military or terrorist activity, stressors based on being a prisoner of war, and stressors based on personal assault. 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran seeks service connection for an acquired psychiatric disorder, claimed as depression, anxiety, and PTSD. Specifically, he contends that he developed PTSD during basic training when he was made to “low crawl across a big field while there was a machine gun firing over top of us.” See April 2014 Statement in Support of Claim for PTSD. The Veteran further asserts that his tinnitus is so bad that he cannot relax and has trouble sleeping causing him to be depressed overtime. See August 2014 Correspondence. Initially, the Board finds that the Board finds that the Veteran does not have a current diagnosis of PTSD under the DSM criteria. In this regard, in a July 2014 VA mental health treatment record, a clinical psychologist noted the Veteran’s report of feeling scared to death during military training having machine guns fired over his head. See September 2019 CAPRI. However, the July 2014 clinical psychologist ruled out PTSD under DSM-IV. Id. Further review of the VA treatment records shows that a PTSD diagnosis was “suggested” in February 2016, but that VA treatment record indicated the “suggested” PTSD diagnosis was based on self-report assessment and insufficient to use alone for diagnostic purposes. Id. However, subsequently, the Veteran’s VA mental health treatment records from July 2016 through April 2019 reflect a diagnosis of PTSD. Nevertheless, it is unclear from these records whether the PTSD diagnosis was based on the Veteran’s in-service stressors. Moreover, there is no indication that the criteria set forth under the DSM were met for such diagnosis. Importantly, after reviewing the claims file and examining the Veteran, the September 2019 VA examiner found that while the Veteran reported having a stressful experience during the military, he did not meet the full criteria for a diagnosis of PTSD under the DSM-V. See September 2019 C&P examination. The VA examiner stated he did not meet the symptom endorsement threshold for Criterion D which is negative alterations in cognitions and mood associated with traumatic events. Id. Additionally, he did not meet the symptoms endorsement threshold for Criterion E which is marked alterations in arousal and reactivity associated with traumatic events. Id. The Board finds that the VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, as the preponderance of the evidence is against finding that the Veteran has been diagnosed with PTSD, service connection for PTSD is not warranted. Although the Veteran does not have a current diagnosis of PTSD, the evidence shows that the Veteran does have a current diagnosis of an acquired psychiatric disability. In this regard, the September 2019 VA examiner stated that the Veteran’s report of depressive and anxiety related symptoms warranted a diagnosis under DSM-V for unspecified depressive disorder with anxious distress. 38 U.S.C. § 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Moreover, although the Veteran’s service treatment records and military personnel records during his active duty do not reflect any complaints or treatment for an acquired psychiatric disorder, the Veteran consistently reported that during basic training he had to low crawl while machine guns were fired overhead. See April 2014 VA 21-0781-Statement in Support of Claim for PTSD. He further stated that he was told not to rise up while the gun was constantly firing over him, or he could be killed. Id. He stated that he was so frightened that he pushed his head so close to the ground and skinned his face. Id. He also indicated that it took forever to crawl through the field and for the machine guns to silence. Id. When the training was over, he stated he was trembling, wanted to hide, and to be safe. Id. He also reported that he now has night terrors, anxiety, depression, and sudden noises scares him. Id. The Board concludes that, the Veteran’s lay statements regarding his experience during basic training are competent and sufficient to support the occurrence of an in-service event as they are consistent with the circumstances of his service. Again, the Veteran has consistently reported such incidents and the Board has no reason to doubt his veracity. Likewise, as discussed further below, the September 2019 VA examiner also indicated that the Veteran’s statements concerning the incidents in service are believable. In turn, the Board must now determine whether the Veteran’s current acquired psychiatric disorder is related to his reported in-service event. On this matter, the Board finds that the September 2019 VA opinion is the most probative evidence of record. Upon review of the Veteran’s claims file, the VA examiner stated that it appears the Veteran’s current mental disorder of non-specified depressive disorder with anxious distress likely started prior to the military and in response to reported abusive childhood and continued on its progression during and after service, there was no clear and unmistakable evidence that the Veteran had a pre-existing mental disorder. Nonetheless, the VA examiner noted the Veteran’s lengthy treatment record for his psychiatric disorders and reports of traumatic events to include seeing a boy hang himself and soldiers falling and shaking all over. The VA examiner also noted his report that he went through a lot in his Army National Guard Training, that he is very nervous, jumpy, and cannot relax. The Veteran also reported not being able to do much and that he freaks out and jump when he hears gunshots. The VA examiner also referenced a January 2015 VA examination which noted the Veteran’s report of his father firing guns over his family’s head and his training in service where guns were fired overhead. In conclusion, the VA examiner opined that his current unspecified depressive disorder was at least as likely as not caused by or related to active military service or events therein. The Board has further reviewed lay statements by the Veteran, his girlfriend, family, and friends supporting the Veteran’s report of nightmares, nervousness, agitation, anxiety, and avoidance of people since separation from service. In this regard, the Board finds that the Veteran is competent to describe his experience in service. His statements are generally consistent, and there is no evidence to the contrary. Moreover, the lay statements submitted by the Veteran’s girlfriend, friends, and family are also competent as they support the Veteran’s behavior after service. As such, the Board finds the lay statements of record to be competent and credible. The Board further finds the September 2019 VA medical opinion to be probative as it was based on a thorough review of the Veteran’s VA treatment records, the Veteran’s lay statements, lay statements by his girlfriend, family, and friends. The VA medical opinion is further supported by an adequate rationale. In conclusion, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current unspecified depressive disorder with anxious distress is related to his military service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an unspecified depressive disorder with anxious distress is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board notes that the Veteran further asserted that his acquired psychiatric disorder was secondary to his service-connected bilateral hearing loss and tinnitus. As direct service connection is the greater benefit and service connection has been granted in full herein, the Board need not consider whether the Veteran is entitled to secondary service connection for his acquired psychiatric disorder. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.