Citation Nr: 21013829 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-42 654A DATE: March 10, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is granted. Entitlement to TDIU is remanded. FINDINGS OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's current PTSD is due to his in service stressor, involving the incident at the U.S. and Mexico border near Marfa, TX. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for an acquired psychiatric disability, to include PTSD and depression have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102 , 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1995 to December 1999 and November 2001 to May 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2014 and August 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the evidentiary file. The Veteran seeks service connection for PTSD, based upon his involvement in a May 1997 military operation at the United States and Mexico border that resulted in the shooting death of an American teenager. He further asserts that his PTSD symptoms have resulted in total disability and render him unemployable. 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. § 1110; 38 C.F.R. § 3.303 (a). In addition, service connection may also be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); 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. § 3.304 (f). When the evidence does not establish that a Veteran is a combat Veteran, the assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, the reported service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304 (f); Pentecost v. Principi, 16 Vet. App. 124 (2002). Within the legal framework for evaluating claims of service connection for PTSD, the sufficiency of a stressor is a medical determination, while the occurrence of a stressor is a legal determination. Sizemore v. Principi, 18 Vet. App. 264 (2004). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102 . The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Acquired psychiatric disability, to include PTSD and depressive disorder Initially, the Board notes that the Veteran has been diagnosed with multiple psychiatric disorders. Such diagnoses can be found within multiple VA medical center (MC) treatment records received throughout the course of this appeal. The Veteran’s treatment history reflects diagnoses of PTSD, depression, anxiety, major depressive disorder, and alcohol abuse disorder in remission. Regarding the requirement of a current diagnosis of PTSD, the Veteran was afforded a March 2016 VA examination to assess his claimed psychiatric disability. The examiner diagnosed other specified depressive disorder, secondary to childhood and significant cluster B and C personality traits, as well as alcohol use disorder in sustained remission. The examiner found the Veteran was an unreliable historian, noting his in-person denials of childhood and adult non-military trauma contradicted the evidence of record. The examiner explained that the Veteran’s treatment records, beginning in 2006, illustrated a history of child abuse and post-military trauma related to incarceration, while endorsement of military trauma began in 2013 prior to filing a PTSD claim. See March 2016 VA Examination Medical Opinion. The examiner noted that both personality factors and secondary gain appeared to influence the Veteran’s behavior, and his symptoms were the result of his mood and personality. See March 2016 Initial PTSD VA Examination. The examiner reported the criteria for PTSD was not met due to discrepancies in the Veteran’s reported trauma history, stressors over the years, and evidence of symptom exaggeration on personality and neuropsychology testing. However, the evidentiary record illustrates the Veteran has a long history of treatment at Long Beach VAMC and shows a diagnosis of PTSD dating back to 2013. In February 2015, the Veteran was referred by his psychiatrist, Dr. Maser, for cognitive testing. The DSM-5 diagnoses of Major Depressive Disorder and (severe) PTSD were identified by Dr. D. H., neuropsychologist, during testing. See Long Beach VAMC treatment record, dated April 6, 2015. Dr. D. H. discontinued formal neurocognitive evaluation because the Veteran did not perform within normal limits when measuring his attention and/or motivation. Dr. D. H. reported that the Veteran’s severe psychological distress was likely the primary factor in the Veteran’s inability to perform at a basic level necessary for formal evaluation of his cognitive abilities. Moreover, the neuropsychologist recommended psychological symptoms should remain a clinical focus of treatment. Thereafter, the evidence of record shows the Veteran continued to maintain a diagnosis of PTSD and (secondary) major depressive disorder, with specific references to the DSM-5 noted in January and February 2016 Long Beach VAMC treatment records. The evidence is in equipoise as to whether the Veteran has a diagnosis of PTSD. Resolving reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s current acquired psychiatric disability, includes a diagnosis of PTSD and major depressive disorder. The first element of service connection is met. The Veteran submitted a May 2014 PTSD stressor statement, which details his involvement in a military operation at the United States and Mexico border that led to the death of an American teenager in May 1997. Additionally, the Veteran, through his representative, submitted the U. S. Marine Corps’ investigation report, regarding the Joint Task Force-6 (JTF-6) shooting incident near the border on May 20, 1997. See April 2016 PTSD Appeal Brief. Lastly, the Veteran included a copy of his deployment record, which shows service assignment with JTF-6 from May 12 to 22, 1997. In light of the above, the Board finds sufficient corroboration to determine the Veteran sustained an in-service trauma. Thus, the second Shedden element has been met, and the dispositive issue is whether there is a nexus between the Veteran’s disability and the in-service event. The Veteran’s treating VA psychiatrist, Dr. B. M., provided a positive nexus statement, opining that it is as likely as not that the Veteran’s PTSD is the direct result of the experiences he had while serving in the military. See Long Beach VAMC treatment record/medical opinion letter dated February 11, 2016. The provider noted he had been treating the Veteran regularly for a full year, following consistent treatment at the facility for the two years prior. Dr. B. M. reported that the Veteran’s military stressor was non-classic but believed the trauma likely led to ongoing PTSD symptoms because he was sensitized to trauma as a child. The psychiatrist reviewed the Veteran’s records, providing a thorough report based on professional training, in-person evaluation, and treatment of the Veteran. The Board assigns probative value. In contrast, the March 2016 VA examiner provided a negative nexus opinion finding the Veteran’s diagnosed depressive disorder was related to childhood trauma and personality traits. The examiner reviewed the record, performed an in-person examination, and provided a detailed report. As noted previously, the examiner identified the varied reports of trauma, finding the Veteran an unreliable historian when he denied any history unrelated to military. The examiner concluded that the Veteran’s diagnosis of depression was less likely than not incurred in service, as the only diagnosis made during service was alcohol abuse. Although the March 2016 VA examiner is permitted to evaluate and reject the Veteran’s response to the claimed stressor, the Board finds the examiner rejected the validity of the in service stressor. The examiner relied on the absence of evidence in the Veteran’s treatment record and failed to evaluate the competent and credible evidence of record, as well as the Veteran’s credible statements, to assess the relationship between the diagnosed disability and the military stressor. Also, the examiner does not address the Veteran’s DSM-5 diagnosis of PTSD and his psychiatrist’s opinion that PTSD is related to military trauma. Thus, the Board assigns less probative weight to the VA examiner’s report, including the opinion that the Veteran’s acquired psychiatric disability is secondary to childhood trauma. The Board notes that the evidence of record does include the Veteran’s reports of significant childhood abuse by his father, and the Veteran’s statement on how he had PTSD from the abuse. The Veteran’s psychiatrist found that the Veteran was sensitized to trauma due to his abusive childhood. Indeed, early treatment records in the evidentiary file focused on child abuse, and those after 2013 show the Veteran endorsed trauma related to the military operation at the border. The Veteran competently and credibly testified that he was uncertain about talking to providers regarding the military trauma because he signed a non-disclosure agreement concerning the border operation. See January 2021 Hearing Transcript at 6. Moreover, at times the Veteran’s treatment records indicate he has military trauma but does not wish to discuss the matter with the provider. e.g. Long Beach VAMC treatment records, dated November 26, 2013 and February 11, 2016. The Board finds that there is an approximate balance of positive and negative evidence on whether the Veteran's PTSD is due to his in service. Therefore, the Board resolves reasonable doubt in favor of the Veteran and finds entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS FOR REMAND Effective June 18, 2013, the Veteran's service-connected disabilities resulted in a combined total of 10 percent and therefore do not meet the schedular criteria for entitlement to TDIU. See 38 C.F.R. § 4.16 (a). However, with this decision, the Board has granted service-connection for the Veteran’s psychiatric disability, but neither a disability rating nor an effective date have been assessed by the RO. As a claim of entitlement to TDIU is based on an analysis of the schedular rating of all of the Veteran's service-connected disabilities, the issue of entitlement to TDIU is remanded as potentially intertwined with the assignment of a disability rating and effective date for an acquired psychiatric disability, to include PTSD and major depressive disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Accordingly, the case is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should assign an initial disability rating and effective date for the, now, service-connected acquired psychiatric disability, to include PTSD and major depressive disorder, and readjudicate entitlement to a TDIU. If the claim for TDIU remains denied, the Veteran should be furnished a Supplemental Statement of the Case and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Gipson, 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.