Citation Nr: 21013122 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 18-17 035 DATE: March 8, 2021 ORDER Service connection for an acquired psychiatric disorder, to include unspecified adjustment disorder, anxiety, insomnia and nightmare disorder and depression is granted. Service connection for chronic headaches is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s current acquired psychiatric disability is related to his active duty service. 2. The evidence is at least evenly balanced as to whether the Veteran’s current chronic headaches had their onset during active service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder, to include unspecified adjustment disorder, anxiety, insomnia and nightmare disorder, and depression, are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for chronic headaches are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1977 to November 1980. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied, in pertinent part, service connection for PTSD and service connection for headaches. The Veteran requested a 60-day extension in May 2012 in order to submit additional evidence. No new and material evidence was received within one year of the March 2012 RO decision; additionally, VA did not receive a notice of disagreement within one year of the decision. The March 2012 RO decision, however, did not take into account evidence submitted prior to the decision (see January 2014 VA Memo), and, thus, the March 2012 decision was not final. The claims were readjudicated in a June 2014 rating decision. The Veteran’s notice of disagreement (NOD) was received in August 2014. The RO issued the statement of the case (SOC) in February 2018, and the Veteran’s VA Form 9, substantive appeal was received in March 2018. In May 2019 the Board remanded the case to the RO for further development and adjudicative action. Although the Veteran submitted a claim for PTSD, the Board recharacterized the issue as a claim for an acquired psychiatric disability, generally. See May 2019 Board remand. The Veteran cannot be required to know whether the symptoms he is claiming service connection for are related to PTSD or another psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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); Caluza v. Brown, 7 Vet. App. 498 (1995). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, such as arthritis and psychoses, may also be established based upon a legal “presumption” by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Psychoses include brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), other specified schizophrenia spectrum or other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, and substance-induced psychotic disorder; but not PTSD, depressive, anxiety, or panic disorders. 38 C.F.R. § 3.384. Additionally, congenital or developmental defects, to include personality disorders, are not diseases or injuries within the meaning of applicable law. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also, Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003) (upholding VA's regulation that a congenital disorder is not a disease or injury as contemplated by 38 U.S.C. § 1110). However, service connection may be granted for congenital diseases, as opposed to congenital defects, with a superimposed disease or injury independent of the personality disorder. In addition to the general service connection requirements stated above, establishing service connection for PTSD, as opposed to other mental health disorders, requires the following: (1) medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, unspecified adjustment disorder, anxiety, and depression. The Veteran, and his representative, contend that his acquired psychiatric disorder, to include PTSD, unspecified adjustment disorder, anxiety, and depression are related to active service. The Veteran has related his claimed psychiatric disorder to various stressors including an in-service training exercise, in which a simulator bomb exploded near his tent, a harsh training environment during service, and various covert missions overseas. See October 2019 VA examination. Service treatment records (STRs) reflect that in June 1979 the Veteran complained about “feeling slightly nervous” for the past 17 months, the first year of which he attributed to an adjustment reaction but stated that after an incident “involving a simulator blowing up” his nervousness has worsened. He reported that when sound passes through his ear it jitters. The Veteran was diagnosed with adjustment reaction to adult life and rule out personality disorder. In a follow up audiology consult, the Veteran was noted to be uncooperative during most of the evaluation resulting in some very inconsistent responses. In April 1980, the Veteran complained of nervousness from pressures of company personnel, in which, he was subsequently diagnosed to have a personality disorder. The Veteran reported spending 4 days in the correctional control facility and still having 20 days left to serve. He stated that he does not want to be a soldier anymore. In August 1980, the Veteran received a special court-martial conviction for three offenses of “disrespect” in April 1980. In an August 1981 Report of Accidental Injury, the Veteran described the incident during service in detail and stated that while the flying debris caused only minor scratches on the outside of his head, they caused severe damage on the inside. He reported experiencing black out spells and stated that his head hurts so badly sometimes that he has to lie down to make it stop. He also reported losing hearing in one ear. The record does not reflect that the Veteran was given a separation examination, but a September 1981 VA examination report reflects no mental disorder for axis I, and a passive aggressive personality disorder, chronic, moderately severe, for axis II. The same September 1981 VA examination report indicates that the Veteran reported being in the field when a simulator blew up and threw rocks through the side of his tent which hit him in the left side of the head. He stated that he thought he might have been knocked out. He reported going to see someone at the aid station and being told that he would be okay. The Veteran states that he has “felt funny” ever since the incident and has headaches over his entire head very often. The examiner noted the Veteran’s history of an injury to the left side of the head and ear but found no objective evidence of a head injury. A March 1982 VA audiology consultation note indicates that the Veteran was referred to audiology for an unusual affect and decreased hearing. The Veteran reported needing a hearing aid so that he can work. It was further noted that the Veteran’s responses to speech were delayed but he eventually responded to questions and instructions in a soft voice (no effort made to speak loudly). The audiologist stated that the Veteran’s speech patterns do not suggest long-standing hearing loss and that the Veteran’s responses to conversational speech suggest hearing at or near normal levels in at least part of the speech frequency range, in at least one ear. Audiological testing revealed discrepancies and the VA audiologist stated that testing was invalid and that further effort to establish audiometric thresholds will require rescheduling to audiology clinic for special testing. The Veteran attended a July 1982 VA audiology examination in connection with his claim for service connection for bilateral hearing loss. The Veteran was noted as appearing out of contact with reality and unresponsive to questions regarding his name or age. The Veteran was noted as having no verbal output at all but began throwing objects around. Security was notified and the Veteran was referred to psychiatric care with the impression of rule out conversion hysteria or substance related secondary effects. The Veteran was admitted to Charity Hospital on an impression of “mutism of unknown etiology.” See July 1982 VA examination. In November 2008, the Veteran was hospitalized for depression. He presented to the emergency room complaining of headache and depressed mood. He reported multiple stressors including losing his home last week and losing his job in construction recently. He endorsed a depressed mood which he stated began a year ago. He denied insomnia but stated he sleeps 5-6 hours a night. He denied appetite problems but then stated that he doesn't eat much and food has lost its taste. He endorsed anhedonia. He denied a decrease in concentration but exhibited difficulty in answering the interviewer's questions. He denied experiencing problems with energy, hopelessness/guilt, or suicidal ideation. He reported goals of getting online at the library and finding a job. He was noted as having a poor social support network and was staying in shelters. He denied experiencing prolonged euphoria/irritability, audio/visual hallucinations or nightmares/flashbacks. He reported a past psychiatric history of being hospitalized in New Orleans VA following separation from active duty after a training device blew up next to his head and stated that “they put [him] in a straight jacket.” In a follow-up mental health evaluation, the Veteran stated that he was “stressed out” and attributed his stressors as homelessness and not having a job. See December 2008 VA mental health intake note. The Veteran stated that he had a business for five years as an interior/exterior contractor and last worked contract work about a year ago but occasionally does “little jobs.” He reported losing his home in early November and staying at Jefferson Place (shelter) since being discharged from the VA hospital in November. The Veteran reported that he was not sleeping as much lately due to being in Jefferson Place since his discharge from the VA. He reported having to get up at 5am and going to sleep around 11pm or midnight. He stated that he gets up to go to the bathroom and has difficulty returning to sleep. He reported being concerned about finances. The Veteran denied combat but reported having had a blast blow up outside his tent, putting holes in the tent and hitting against his head. He reported having “assimilated blood” next to his head which led him to complain of headache and be psychiatrically hospitalized. The Veteran reported alcohol use during service and occasional cannabis use in his 20s and 30s but no alcohol or illicit drug use since. The Veteran denied audio or visual hallucinations, mania, anxiety, or panic attacks. He also denied symptoms of PTSD except for being occasionally jumpy. He was found to be a vague historian with logical, coherent and goal-directed thought pattern and dysthymic but blunted affect. He expressed dissatisfaction that he was not helped more to find housing and a job. The Veteran was diagnosed with depression NOS. In December 2008, the Veteran, again, complained of not having housing. The Veteran, among other things, was found to be dysphoric, angry, irritable, and dissatisfied because someone in the Health Care for Homeless Veterans Program told him that he would be able to obtain housing. A January 2009 VA treatment note indicates that the Veteran had a positive PTSD screen. The Veteran came in to establish primary care and reported that his last primary care visit was years ago. He stated that he was unemployed and seeking VA help with school and shelter. He reported that suicidal thoughts “come and go” but denied any plan. The Veteran denied anxiety, short temper or fear. He reported that his head “feels bad” but he “can’t explain” how it feels. He reported that stress makes it worse but denied that it was a headache. A September 2010 VA emergency room note indicates that the Veteran came in reporting headaches for more than 20 years and chronic low back pain. He reported that he has experienced severe headaches, flashbacks and memory problems since an explosion near his tent during service. A February 2011 VA physical rehabilitation note indicates that the Veteran reported problems with social and occupational functioning including not working steadily since the military. He reported doing little jobs and creating artwork. He reported that he cannot get a job and stated that now his back hurts so he cannot work at all. The physical rehabilitation note also described the Veteran’s mental health history and noted his inpatient mental health stay for depression in 2008. It was noted that the Veteran stopped the medication prescribed during his last hospital stay (sertraline) as he did not get it filled. In 2009, a trial of citalopram was ordered by primary care but he did not refill it. It was noted that the Veteran was recently started on nortriptyline to address mood and headache issues and the Veteran reported taking it sometimes. The Veteran denied any drug use for many years but a recent urine drug test was positive for marijuana. During the mental status exam, it was observed that the Veteran did not answer questions directly and had poor eye contact and attention span. The interviewer stated that the Veteran was able to communicate or withhold information at will and appeared able to weigh the consequences of actions and consider alternatives. His mood was “average.” There was no evidence of hallucinosis, disassociation or flashbacks during the interview. A follow up for traumatic brain injury (TBI) was determined to be unnecessary. The Veteran swore an affidavit in November 2011 in which he describes going to the VA for depression in the 1980s and encountering problems with the VA over the years when he tries to seek treatment. He stated that these experiences discouraged him from going to the VA for years. He reported self-medicating to treat his depression with over the counter medications and illegal drugs. He stated that he gets constant headaches and ringing in his ear that keep him awake at night. He also reported experiencing nightmares and being unable to hold a job because of lack of sleep which then causes him to become irritable. The Veteran described the accident during service where a simulator device blew up near his tent and hit the side of his head. He stated that while he was treated for the outside wounds, he was sent back to duty the next day. He stated that being assigned to a military infantry unit is enough stress and the head injury added to the stress and depression. The Veteran stated that an infantry unit is training for war even during peace time. The Veteran stated that because he grew up poor, he was unable to afford a proper diagnosis from a doctor and could not understand what was wrong with his health or what PTSD was. He reported a long history of homelessness, unemployment, addiction and incarceration since separation from active duty. A November 2015 VA treatment note reveals that the Veteran was seeking referral for PTSD. He stated that he has been diagnosed with PTSD by a private therapist. A December 2015 VA mental health note indicates the Veteran was diagnosed with unspecified depressive disorder. A January 2016 comprehensive mental health examination diagnosed the Veteran with insomnia and nightmare disorder, PTSD was ruled out. The Veteran again described the incident during service where a dummy round exploded near his tent and endorsed a longstanding history of insomnia, stating that he only sleeps about 4 hours a night and has nightly distressing nightmares of “people killing, being killed” and other nightmares related to the incident with the dummy round explosion. He reported self-isolating and avoiding crowds. He denied flashbacks at other times. The Veteran reported that his mood is “pretty stable” and denied depressed mood, anhedonia, hopelessness, or suicidal or homicidal ideation. He reported having anxiety in the past but not currently. The Veteran was noted to be vague and evasive during discussions of most symptoms and making vague statements in response to being asked for more information. The interviewer stated that the Veteran appeared focused on obtaining resources and was highly focused on the claims process. In a subsequent mental health evaluation, the Veteran was assessed with unspecified adjustment disorder and malingering in order to cope with financial stress. The examiner noted that it was difficult to determine the specific nature of the Veteran’s distress due to, in part, the Veteran’s only consistency was his desire to attribute his current mental health disorder to military stressors for financial gain. In a follow-up Trauma Recovery Program (TRP) conference, with 16 clinicians in attendance (ranging from doctors, psychologists, and social workers), the Veteran was presented and discussed. The consensus diagnosis was unspecified adjustment disorder and malingering. The attendees found the Veteran to be “without symptom profile indicative of trauma focused therapy.” See January 2016 mental health consult note. In a May 2016 lay statement attached to his June 2016 NOD, the Veteran stated that all of his current symptoms have been bothering him since active service. He also stated that he comes from an indigenous heritage and “VA pills are not [his] virtue of treatment.” A June 2016 VA mental health note indicates that the Veteran presented with vague complaints of headaches, insomnia, and distress which he believes are the result of active service. The Veteran stated that he was “turned down for PTSD.” He stated that although he served in peacetime, his infantry training was very traumatic. He alluded to bugs in the jungle and alligators that could hurt someone. He did not cite a particular event but emphasized that people could get hurt or killed. He reported that he was not allowed to go to sick bay when he was ill. The interviewer noted that the Veteran was vague in providing instances of actual traumatic events. His thought processes were coherent and future oriented. There was no evidence of audio/visual hallucinations or psychotic thought processes. The interviewer concluded that the Veteran presented with vague symptoms that do not appear to fit diagnostic categories except for perhaps insomnia. The interviewer also stated that the Veteran’s presentation suggests there may be secondary gain motivation in seeking mental health services. Specifically, the interviewer stated that, over the course of multiple encounters “the Veteran has been consistently highly focused on claims process, hostile to most questions asked by provider, and provides vague/evasive responses if he answers at all.” The interviewer noted that during presentation the Veteran is noted to be irritable and hostile at times, but seems linear and goal directed and does not appear psychotic or a threat to self or others. The Veteran submitted a lay statement in June 2016 wherein he describes stressful and dangerous infantry training during service. He also reported that the medics would not properly treat his injuries. The Veteran stated that because of sleep problems and constant headaches, he is easily irritable which causes him problems when socializing with certain types of people. He stated that this and other anxiety disorders have had a profound effect on his life and personality since discharge from active service. He stated that since separation, it has taken years for him to adjust to society after being homeless and on different drugs. He stated that he is still feeling the effects of these stresses. He reiterated the stressful nature of his active service and being fearful of reporting health problems during service. He stated that the only stressful event in his life was his military service. He reported avoiding “anything that is setup like the military.” The Veteran submitted a February 2019 private medical opinion from licensed psychologist, Dr. D.N., in April 2019. Dr. D.N. reviewed the Veteran’s claim file, VA rating criteria, and conducted a phone interview with the Veteran. Dr. D.N. recounted the Veteran’s psychiatric history during service, including the simulator explosion and his mental health hospitalization immediately following service. Dr. D.N. then stated that records indicate that since leaving the military, the Veteran has continued to experience significant psychiatric symptoms, including depression and anxiety, and has struggled to consistently maintain gainful employment, resulting in bouts of homelessness. Dr. D.N. then recounted the Veteran’s post-service mental health treatment beginning in 2008. He noted that the VA clinician who indicated in January and March 2016 that the Veteran did not show any re-experiencing symptoms observed “slurred/mumbled speech” and suspected alcohol and/or drug abuse. During a phone interview with the Veteran, Dr. D.N. indicated that the Veteran described a long history of nightmares, insomnia, headaches, stress, nervousness, and anxiety, depression, mood swings, irritability, avoidance, memory problems and confusion, all of which he attributes to his time in the military, and specifically to the blast-related injury he sustained. The Veteran explained that he has been periodically homeless and has difficulty maintaining employment due to his symptoms. He emphasized that his irritability and insomnia caused him to be dysfunctional at work and to have interpersonal difficulties in a work environment. Dr. D.N. stated that, “taken together, [the Veteran] has a long history of evidence for symptoms of major depressive disorder and PTSD.” Dr. D.N. noted that the Veteran’s history includes hospitalization for depression and a longstanding history of depressive episodes, with ongoing depressed mood, sleep and appetite disturbance, irritability and mood swings, and difficulty concentrating. In regards to the PTSD, Dr. D.N. again stated that the Veteran displayed numerous symptoms of PTSD throughout the medical record. Dr. D.N. stated that, per the Veteran’s report, these symptoms have caused significant social and occupational difficulties, and are directly attributed to his time in the military and specifically to his blast-related injury. Dr. D.N. noted the blast-related event qualifies as a Criterion A event because the Veteran reported extreme fear and surprise by the explosion which was unexpected and perceived as a real physical assault. Dr. D.N. concluded that, “based on the nature of his blast-related injury and the connection between that injury and his intervening years of psychiatric symptoms, it is my opinion that [the Veteran] meets criteria for PTSD by DSM-IV and DSM-5 criteria.” Dr. D.N. also stated that it is at least as likely as not that the functional impairment attributable to the Veteran’s major depressive disorder and PTSD cannot be differentiated from one another. Dr. D.N. noted that the Veteran’s STRs indicate he was already experiencing anxiety and difficulty adjusting to military service prior to the simulator blast and that this event exacerbated his anxiety level. Thus, Dr. D.N. concluded, the Veteran’s PTSD symptoms are at least as likely as not related to his experiences during military service. Dr. D.N. noted the Veteran’s diagnosis of passive-aggressive personality disorder shortly following separation but stated that such a disorder no longer exists in the DSM-5 and that he did not find similar traits in his review of the record or interview with the Veteran. He also stated that such a diagnosis requires consistent observation of behaviors over time and across situations and noted that it is also possible to have a personality disorder and yet still develop distinct trauma-related symptoms. Dr. D.N. also emphasized that it is important not to cherry-pick certain treatment notes where the Veteran denied certain symptoms and that the fact that the Veteran sometimes denied PTSD symptoms does not rule-out the possibility of PTSD. An October 2019 VA examination report reflects that the Veteran was diagnosed with unspecified depressive disorder with anxious distress and nightmare disorder. The examiner noted that the Veteran was not considered to be a reliable historian during the examination as there were inconsistencies in his responses when compared with STRs. The examiner reported that the findings were based on a thorough review of available records and information gleaned from the evaluation. The Veteran reported two separate stressors during services. He reported the incident with the simulator explosive that went off near his head. He stated that he was treated for a few bruises and scratches but sent him back to duty the next day. For his second stressor, the Veteran reported that he had been a part of covert missions flying to "Panama, Alaska and the end of the Iranian War." He added that “even in peacetime, they are training you go to the next war." The Veteran stated that servicemembers in his platoon died during training as a result of fighting and motor vehicle accidents. He reported training in the desert where rattlesnakes were around. He stated that people were dying just like battle: “You have desert training and people are getting bit by rattlesnakes. People were going off and some were fighting. We were ready to go to war anytime. They can wake you up any time at night and be ready to move out.” The examiner found that the Veteran met the DSM-V PTSD diagnostic criteria A, B, C, D, E, and H but did not meet the criteria F, G, or I. The Board notes that the examiner did not consider whether the Veteran met the DSM-IV criteria for PTSD. In this regard, a new version of the Diagnostic and Statistical Manual of Mental Disorders (DSM) was published during the pendency of this appeal and that, with respect to criteria needed to establish a diagnosis of PTSD, there is a difference between Criterion A in the DSM-4 and the new version in DSM-5. Under the DSM-4, criterion A for PTSD requires that the person has been exposed to a traumatic event in which both of the following were present: (1) the person experiences, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and (2) the person's response involved intense fear, helplessness, or horror. Under the DSM-5, criterion A for PTSD requires that the person must have been exposed to actual or threatened death, serious injury, or sexual violence. The examiner’s error in not considering the DSM-IV criteria is harmless because criterion A is not at issue and criteria F and G, while labeled differently under the DSM-IV, are otherwise unchanged and thus the Veteran would not have met the DSM-IV criteria had they been considered and applied. Compare Diagnostic and Statistical Manual of Mental Disorders, 4th Edition with Diagnostic and Statistical Manual of Mental Disorders, 5th Edition. The examiner noted that the Veteran was irritable when asked about his current mental health symptoms and was tangential in responding. The examiner found it notable that when the Veteran initiated mental health treatment in 2008 following his psychiatric admission for depression, he attributed his stressors to homelessness and unemployment. The examiner stated that the Veteran’s report of symptoms is fairly vague. He stated that he had nightmares but was unable to provide details other than "the killings," referring to fights among servicemembers that resulted in deaths. The examiner reported that the Veteran vaguely referred to participating in covert missions "to Panama and at the end of the Iranian War, we didn't know where we were flying to. We were infantry and we were just doing what we were told." However, the examiner noted that there was no specific report of combat exposure. The Veteran referred to the simulator explosive blast, back pain and his complaints not being taken seriously by his COC (and now the VA) as his primary stressors. The examiner noted that the Veteran repeatedly stated that his military service set his life on a course from which he was unable to recover due to lack of support and being excessively "disciplined" by leaders. He stated, "Throughout my training, I had problems with my back. They ignored the whole situation and gave me extra discipline. It caused me even more problems by them ignoring the whole situation." It was also noted that the Veteran attributes his inability to maintain employment as well as homelessness on emotional instability that ensued post service. The examiner concluded that the Veteran’s claimed acquired psychiatric disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that the Veteran’s reported stressors are not adequate to support a diagnosis of PTSD in accordance with the DSM-5. The examiner noted that the Veteran was diagnosed with adjustment reaction to adult life, rule out personality disorder during service, after reporting feeling nervous because of the simulator explosion. The examiner recounted that in 1980, the Veteran reported nervousness within the context of work-related stressors and in 1981 was diagnosed with a personality disorder without any primary Axis I disorder. The examiner noted that the Veteran was absent from mental health treatment until 2008, when during his initial mental health evaluation, he reported the simulator explosion incident but did not relate this experience with his symptoms. The examiner stated that notes from that evaluation indicate that he had become depressed after losing his job, and as a result, had been psychiatrically hospitalized. The examiner further noted that the Veteran did not endorse symptoms consistent with PTSD except for occasional jumpiness and was diagnosed with depression NOS. The examiner stated that the Veteran's report of involvement in covert missions as one of his stressors is inconsistent with his MOS, STRs and the September 1981 VA psychiatric examination. The examiner added that the Veteran’s STRs are silent for the "killings" that the Veteran reported happening within his unit and that although he reported having nightmares of "people killing, being killed" he did not report being a witness to actual incidents. The examiner stated that the etiology of the Veteran's mental health symptoms is likely varied as he clearly reported unemployment, financial strain and homelessness as factors over the years. He did not start to endorse PTSD symptoms until 1/14/09, which were not clearly related to the in-service event. He was homeless at the time and living in a shelter. The examiner stated that, as a result, it is likely that he had been exposed to other stressful events. The examiner further noted that not until 2012 did the Veteran start attributing mental health symptoms to an in-service event and stated that there is no clear and consistent evidence that the Veteran has a psychiatric disorder that is related to an in-service event. The examiner concluded by stating that there is no indication that the anxiety that the Veteran initially experienced after the simulator explosion has been a factor in his mental health issues over the years. In accordance with the May 2019 Board remand, the VA examiner was also asked to provide an opinion as to whether it is at least as likely as not that any additional acquired psychiatric disorder is superimposed upon the Veteran's documented personality disorder. The examiner stated that although the Veteran was initially diagnosed with personality disorder circa active duty service, his mental health records do not notate a diagnosis of this condition since active duty. The examiner observed that the Veteran does exhibit significant resistance, defensiveness and irritability which he attributes to feeling wronged by various organizations (Army, VA) who have not taken his symptoms seriously and believes that he is being denied benefits to which he is entitled and stated that this presentation is consistent with mental health records. However, the examiner stated that they did not have sufficient evidence to support a diagnosis of personality disorder at the time of the examination since records have been silent for a personality disorder since 1980. Therefore, the examiner concluded that the Veteran's current diagnoses of Unspecified Depressive Disorder with anxious distress and Nightmare Disorder are not superimposed on the documented personality disorder. The Veteran’s representative submitted an August 2020 private psychiatric evaluation and medical opinion from licensed psychologist, Dr. E.Z., in November 2020. Dr. E.Z. reviewed the Veteran’s claim file, VA rating criteria, and conducted a phone interview with the Veteran. Dr. E.Z. recounted the Veteran’s psychiatric history during service, including the simulator explosion and his mental health treatment. She also noted that the Veteran submitted a report of accidental injury in 1981 detailing the simulator explosion and mentioned it during a VA examination in 1981. Dr. E.Z. then recounted the Veteran’s post-service mental health treatment after 1981 beginning with the Veteran’s psychiatric hospitalization in 2008. Dr. E.Z. conducted a mental status evaluation of the Veteran during the phone interview. She found him fully oriented but noted that he struggled to provide direct and concise responses and became frustrated when pressed for more details. He was noted as responsive to patience, encouragement, and humor and seemed less defensive by the end of the interview. Dr. E.Z. stated that the Veteran’s recent and remote memory were impaired. He struggled to remember events, there were large gaps in his timeline, and he was unable to present information in chronological order. Dr. E.Z. stated that the Veteran’s report was consistent with the available documentation and she found no reason to doubt his veracity. She stated that the Veteran’s symptoms fit a known disease profile and did not include bizarre or atypical features. She noted that the Veteran reported a history of passive suicidal ideation but none currently and described his mood as depressed. During the clinical interview, the Veteran described basic training and his infantry unit as “real tough” and recounted the incident with the simulator explosion. He stated that after the simulator blast and injury, his anxiety increased and he was unable to sleep well and that, “from that point, [his] life changed.” He said he began to have difficulties afterward and had re-training. After service, the Veteran reported difficulty maintaining employment due to irritability and stated that he avoided the VA after an experience where they “put [him] in a straight jacket.” He reported hypervigilance and trouble developing friendships or romantic relationships. The Veteran reported current anxiety that is worse when he is around other people. He reported self-isolating. Dr. E.Z. stated that the Veteran consistently reported that his mental symptoms began after the simulator incident and that, based on the Veteran’s report and VA treatment records, it appears his symptoms continued, to some degree, without significant periods of remission since the simulator explosion during service. Dr. E.Z. stated that, as a result of his symptoms, the Veteran was homeless, unable to maintain employment, and did not marry or have children despite expressing a desire to. She stated that there was evidence of significant emotional, social and occupational impairment for which the Veteran repeatedly sought treatment. Dr. E.Z. further explained that the Veteran did not meet the criteria for a personality disorder and stated that no post-service treatment records indicated that the Veteran was believed to have a personality disorder. She noted that the Veteran was not diagnosed with a personality disorder during his 2008 psychiatric hospitalization when he was under close and extended observation. Dr. E.Z. concluded that it is at least as likely as not that the Veteran’s acquired psychiatric condition is due to service and that symptoms were present during service. She noted that no psychiatric disorders or symptoms were found on entrance to active service. Dr. E.Z. recounted the Veteran’s reported rigorous training and the documented simulator explosion and noted that the Veteran’s performance declined following the explosion and he eventually reported that he no longer wished to be a soldier and endorsed suicidal ideation in April 1980. Dr. E.Z. stated that, while it is likely that homelessness, unemployment, and financial strain aggravated the Veteran’s symptoms, those stressors occurred well after the Veteran first reported symptoms. Dr. E.Z. concluded that it is therefore at least as likely as not that the Veteran experienced psychiatric symptoms while in service, in response to the simulator bomb incident and that his unemployment and homelessness were a consequence of his mental condition, and served to aggravate it. Upon review of the evidence of record, service connection for an acquired psychiatric disability, to include unspecified adjustment disorder, anxiety, insomnia and nightmare disorder and depression, is warranted. In assessing the probative weight given to a medical opinion, the Board must consider whether it is based on sufficient facts or data; the product of reliable principles and methods; and the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008); see also Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (although all medical opinions constitute medical conclusions that the Board cannot ignore or disregard, the Board is not obligated to accept any examiner's opinion). The Board finds the August 2020 private nexus opinion contains a well-articulated explanation that duly considers and is supported by the evidence of record, and, as such is highly probative on the point of nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, the Veteran has consistently brought up either the simulator explosion or his difficult and traumatic experience during training and as a basic infantryman during mental health treatment and the Veteran has reported a history of homelessness and difficulty maintaining steady employment since active service. The October 2019 VA psychiatric opinion diagnosed the Veteran with unspecified depressive disorder with anxious distress and nightmare disorder and found that the disorder was unrelated to service despite the Veteran only reporting nightmares related to his active service. Additionally, the October 2019 VA examiner relied on the Veteran’s absence from mental health treatment until 2008 in determining that the Veteran’s current psychiatric disorder is unrelated to service but did not address the Veteran’s report that he did not realize the nature or extent of his psychiatric disability and self-medicated with alcohol and drugs following his separation from service rather than go to the VA because he had had bad experiences with the VA immediately following his separation from service. The October 2019 VA opinion also appeared to rely on the fact that in 1981 the Veteran was diagnosed with a personality disorder, but the examiner also determined that there was insufficient evidence to diagnose the Veteran with a personality disorder. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current acquired psychiatric disability had its onset during service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a chronic headache disability. The Veteran contends that his claimed headaches are related to active service. The Board concludes that the Veteran has a current headache disability that is related to active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The October 2019 VA examination and VA treatment records show the Veteran has a current diagnosis of migraine headaches. Thus, the question becomes whether the current disability is related to service. STRs reflect that in June 1979 the Veteran complained that his nervousness worsened after an incident “involving a simulator blowing up.” In an August 1981 Report of Accidental Injury, the Veteran described the incident during service in detail and stated that while the flying debris caused only minor scratches on the outside of his head, they caused severe damage on the inside. He reported experiencing black out spells and stated that his head hurts so badly sometimes that he has to lie down to make it stop. He also reported losing hearing in one ear. The record does not reflect that the Veteran was given a separation examination, but a September 1981 VA examination report indicates that the Veteran reported being in the field when a simulator blew up and threw rocks through the side of his tent which hit him in the left side of the head. He stated that he thought he might have been knocked out. He reported going to see someone at the aid station and being told that he would be okay. The Veteran states that he has “felt funny” ever since the incident and has headaches over his entire head very often. The examiner noted the Veteran’s history of an injury to the left side of the head and ear but found no objective evidence of a head injury. In November 2008, the Veteran was hospitalized for depression. He presented to the emergency room complaining of headache and depressed mood. A January 2009 VA treatment note indicates that the Veteran reported that his head “feels bad” but he “can’t explain” how it feels. He reported that stress makes it worse but denied that it was a headache. A September 2010 VA emergency room note indicates that the Veteran came in reporting headaches for more than 20 years and chronic low back pain. He reported that he has experienced severe headaches, flashbacks and memory problems since an explosion near his tent during service. The Veteran swore an affidavit in November 2011 in which he describes experiencing constant headaches and ringing in his ear that keep him awake at night. The Veteran submitted a lay statement in June 2016 wherein he describes stressful and dangerous infantry training during service. He also reported that the medics would not properly treat his injuries. The Veteran stated that because of sleep problems and constant headaches, he is easily irritable which causes him problems when socializing with certain types of people. Other VA treatment records and lay statements similarly indicate the Veteran reporting that he has experienced chronic headaches since active service. The Veteran underwent a VA examination in October 2019 for headaches. The report indicates diagnoses of migraine including migraine variants and headaches, both diagnosed in 1982. The Veteran reported the simulator incident where an explosive blew up near his head. He reported being treated for his superficial injuries but was given no further treatment. The Veteran reported that since the incident he had mild headaches that have gradually worsened. He described headaches that start behind the right side of his ear and then move all around his head. He reported achy, sharp, pins and needle pain at different times and stated that no headache is the same. The examiner noted that the Veteran takes Naproxen for pain and inflammation and the Veteran reported that it helps sometimes. The Veteran reported that he has not worked “since 2000 something”, only doing simple work. The Veteran reported that his headaches keep him up at night and cause him to be irritable all day with people. The examiner stated that the Veteran is a poor historian. The examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale mostly consisted of a list of the treatment the Veteran has received for his headache disability. However, the examiner also stated that, “there is no documentation when the injury and headache occurred. Veteran has discussed during sick calls, but no further investigation done. There is a gap of care until early 2000 for headaches.” The examiner then included two web addresses which lead to medical journal articles on the causes and treatment of migraines. The evidence of record indicates that the Veteran first reported headaches following the documented simulator blast during service and has repeatedly contended that he has experienced migraine headaches since service. The Veteran, as a lay person, is competent to describe observable symptoms such as headaches. See Jandreau, 492 F.3d at 1372. The Board acknowledges that the October 2019 VA examiner opined that the Veteran’s migraine headache disability is not related to active service. However, the examiner based the opinion on an inaccurate factual premise. In this regard, the negative opinion is premised upon the finding that the simulator blast and resulting head injury and complaints of headache were not documented in the STRs despite a June 1979 service treatment note indicating the Veteran reporting the simulator blast. The record also includes an August 1981 Report of Accidental Injury, wherein the Veteran described the incident during service in detail. Accordingly, the Board assigns little probative value to the negative opinion. See Nieves-Rodriguez, 22 Vet. App. at 304 (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning); Reonal v. Brown, 5 Vet. App. 458 (1993) (holding that a physician's opinion based on an inaccurate factual premise has no probative value). Further, the examiner did not address the Veteran’s lay reports of first experiencing headaches during service that have continued and progressively worsened since. The Board assigns higher probative value to the Veteran’s consistent lay statements and VA treatment records indicating that he has suffered from headaches since service, and the STRs indicating complaints of headaches following the documented simulator blast during service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current migraine headache disability had its onset during service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for migraine headaches is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Modesto, Victor 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED