Citation Nr: 21014106 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-02 116 DATE: March 11, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) with major depressive disorder is granted. FINDING OF FACT The Veteran’s PTSD with major depressive disorder had its onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD with major depressive disorder have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304 (f)(3). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1968 to January 1971, including service in the Republic of Vietnam. The Veteran died in July 2019 during the pendency of his appeal. The appellant, the Veteran’s surviving spouse, has been substituted as the claimant for the purposes of processing the Veteran’s claim on appeal to completion. 38 U.S.C. § 5121A. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In an August 2018 decision, the Board denied service connection for PTSD. The Veteran appealed the Board’s August 2018 decision to the United States Court of Appeals for Veterans Claims (Court), which in a July 2019 order, granted the parties’ joint motion for remand (JMR), vacating the Board’s August 2018 decision and remanding the claim for compliance with the terms of the JMR. The Board remanded this matter in June 2020 for additional development. The Board finds that there has not been substantial compliance with its remand directives. See, Stegall v. West, 11 Vet. App. 268 (1998). However, in light of the favorable decision to grant the Veteran’s claim of service connection, further remand is not required. Entitlement to service connection for PTSD with major depressive disorder. The appellant contends that his PTSD with major depressive disorder is related to and/or had its onset in service, and in particular, to the Veteran’s service in Vietnam. The Board concludes that the Veteran has a current diagnosis of PTSD that is related to his active duty service in Vietnam. 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), 3.304 (f)(2). Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV or DSM 5)); 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). A veteran’s lay testimony alone may establish the occurrence of a claimed in-service stressor in the absence of clear and convincing evidence to the contrary, if the veteran engaged in combat with the enemy, the claimed stressor is related to that combat, and the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service. See 38 C.F.R. § 3.304 (f)(2) (2017). Initially, the Board observes that, as acknowledged by the RO, the Veteran served in Vietnam as an artillery battery crewman and that his “[i]n service stressor is conceded under the relaxed evidentiary standards.” 38 C.F.R. § 3.304 (f)(2). Thus, the outstanding issues are whether the Veteran has a diagnosis of a psychiatric disability, particularly PTSD, and whether that disability is directly related to his active duty service. After a review of the evidence of record, the Board finds the evidence is at least in equipoise on both these issues and concludes that entitlement to service connection is warranted for an acquired psychiatric disability, to include PTSD. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009), Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f). A June 2008 VA treatment record notes the Veteran reported having frequent nightmares of fighting other people. It was noted that he had a positive PTSD screen in 2005. A subsequent June 2008 VA mental health initial assessment notes the Veteran reported nightmares and vivid dreams that were triggered by the death of his best friend in 2000. He further reported having these types of nightmares following his return from Vietnam in 1968, as well as other symptoms of PTSD. Diagnoses of PTSD, depression and nightmares were noted. A July 2008 VA treatment record reflects that the Veteran gave a history of “classic” PTSD symptoms upon return from Vietnam and self-treatment with alcohol which he stopped. It was then noted that his symptoms have returned since the death of a good friend in 2000 and Hurricane Katrina in 2005. The Veteran reported having nightmares following his return from Vietnam as well as “symptoms of PTSD.” The Veteran reported being in a firefight upon returning to Pleiku in which a truck flipped, his squad was attacked, and a friend was killed. He further reported heavy casualties from a base being overrun. He finally reported an ammo dump explosion in which five people were killed. Diagnoses of PTSD and depressive disorder, not otherwise specified, were noted. While no relevant treatment records prior to June 2008, the Board notes that the Veteran is competent to report that he experienced symptoms of nightmares for which he self-medicated with alcohol but did not seek treatment. His statements is credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record. The Veteran was afforded a VA examination in October 2010. He reported serving with the Fourth Infantry Division while in Vietnam at Pleiku. He reported stressors of being involved in firefights and seeing his friend either blown up or shot by snipers. He then stated that since he returned from Vietnam, he has had dreams of fighting and not being able to get away. He further reported drinking until 1989 when he quit after his mother died. The examiner noted that the Veteran’s documented mental health history and the results of objective testing did not conform to the DSM guidelines. It was further noted that the PTSD diagnoses that had previously been rendered “had been given in the clinical context where different diagnostic guidelines apply”, and that it “appears to have been based on his subjective reporting of symptoms.” A diagnosis of alcohol dependency is remission was rendered and the examiner noted that alcoholism can result in chronic mood problems. The examiner then stated that there is no direct evidence linking the Veteran’s alcoholism to his military service. The Veteran was afforded a VA PTSD examination in March 2014. It was noted that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under DSM-IV or DSM-5. A diagnosis of major depressive disorder was noted. The examiner concluded that there is no evidence that the Veteran’s major depressive disorder was caused by or related to his military service, noting that the Veteran’s service treatment records are negative for any complaints, treatments or diagnoses of any mood disorder, and that there is no evidence post-service until July 2008 when he reported nightmares to the Biloxi VAMC. The examiner then noted that the Veteran reported that his mood problems began in 1989 after he stopped drinking alcohol. It was also noted the Veteran began drinking when he was 17, then started drinking heavily when he was in Vietnam, and continued to drink to excess until 1989 when he received a DUI. Here, both VA examiner relied heavily on the lack of documented PTSD symptoms prior to 2008. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (providing that a medical examiner cannot ignore the Veteran’s lay statements and rely on the absence of medical records corroborating the alleged injury to discard a nexus between the Veteran’s current disability and his military service); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006) (holding that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). Further, the March 2014 VA examiner failed to address whether the Veteran’s drinking, which was noted to have begun at 17, becoming heavy drinking during his time in Vietnam, was a marker of or otherwise indicated PTSD or any other psychological disorder. As such, the Board finds these opinions to be of limited probative value. A VA opinion was obtained in August 2020. Upon review of the record, a VA examiner opined that it is less likely than not that the Veteran’s claimed acquired psychiatric disorders had their onset in service or are otherwise related to his service. The examiner noted that the Veteran failed validity testing on 2 separate occasions with 2 separate examiners and stated that this was a red flag. It was then noted that a clinical provider is under no obligation to question a Veteran’s claims or reported symptoms, noting that to do so would potentially harm a therapeutic alliance or generate complaints, and as such, clinical providers must take a Veteran’s report at face value. The examiner then noted that compensation and pension examiners are required to search for objective evidence, and again noted that the Veteran failed objective validity testing on 2 separate occasions. The examiner then concurred with the opinion of the 2014 VA examiner. As this opinion does little more than defend two prior VA examination opinions that the Board has found to be of little probative value, the Board finds this opinion to likewise be of limited probative value. Here, the evidence shows that the Veteran began drinking heavily while in Vietnam and then began having nightmares after returning from Vietnam for which he self-medicated with alcohol until he quit drinking in 1989. The Veteran reported having recurrent psychiatric symptoms since his return from Vietnam. Further, the evidence shows that he continued having the same type of nightmares after triggering event in 2000 and 2005, and that he eventually sought treatment in 2008, leading to diagnoses of PTSD and major depressive disorder. The Bord notes that since 2008, the VA treatment records are replete with diagnoses and treatment for PTSD and depression. In a June 2016 letter, Dr. E. Harvey of the Biloxi VA Mental Hygiene Clinic stated the Veteran had been diagnosed with PTSD stemming from his exposure to combat in Vietnam. Based on the credible and probative lay and medical showing the onset of psychiatric symptoms in service and the diagnoses of PTSD and major depressive disorder, and resolving all reasonable doubt in favor of the appellant, the Board finds that service connection for his PTSD with major depressive disorder is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.