Citation Nr: 21014532 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 18-45 197 DATE: March 12, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. FINDING OF FACT The preponderance of the evidence supports finding that the Veteran’s acquired psychiatric disorder was related to his active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the Army from April 1963 to April 1966. This matter is on appeal to the Board of Veterans’ Appeals (the Board) from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. At the August 2020 hearing, the Veteran requested through his representative and was granted 90 days to submit additional evidence. In November 2020, the Veteran’s representative requested the record remain open for an additional 30 days. Due to the Covid-19 pandemic there had been a delay in scheduling the Veteran for an independent medical examination. The extension request was granted, and records were received from the Veteran in December 2020. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Board notes that a claim for a disability includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Veteran filed a claim in June 2016 for unspecified trauma disorder. Review of the Veteran's medical treatment record shows treatment and diagnoses for unspecified anxiety disorder, alcohol use disorder, and depression not otherwise specified. A September 2016 disability benefits questionnaire (DBQ) physician diagnosed the Veteran with moderate unspecified anxiety disorder and moderate alcohol use disorder. The examiner found the Veteran did not meet the DSM-V criteria for post-traumatic stress disorder (PTSD). D.D. (Ph.D., ABPP), an independent medical examiner, diagnosed the Veteran with severe major depressive disorder (MDD), unspecified anxiety disorder, and moderate alcohol use disorder. Considering the Veteran's claims and description of his symptomology, and examinations of the issues, the Board will recharacterize the claim to consider whether the Veteran is entitled to service connection for an acquired psychiatric disorder. Applicable Law and Regulations Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability, (2) an 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. 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Due consideration must be given to all pertinent medical and lay evidence in evaluating a claim for service connection for any disability. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence that does not require the proponent to have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Lay statements can be considered competent to establish a diagnosis when the layperson is competent to identify the medical condition, reports a contemporaneous medical diagnosis, or describes symptoms which support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Once evidence is deemed competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465 (1994). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Facts In April 1963, the Veteran’s enlistment examination generally showed normal clinical findings. Pes planus, defective vision corrected by pinhole, and a scar on the right middle finger/bony deformity were noted. He reported good health overall. He denied frequent trouble sleeping, terrifying nightmares, depression or excessive worry, loss of memory, nervous trouble of any sort, drug use, excessive drinking, and attempted suicide. The Veteran had normal clinical findings at the time of his separation examination in February 1966. He continued to deny frequent trouble sleeping, terrifying nightmares, depression or excessive worry, loss of memory, nervous trouble of any sort, drug use, excessive drinking, and attempted suicide. Apart from severe tooth or gum trouble and bone, joint, or other deformity, he reported good health overall. The Veteran’s military personnel records showed several incidents in service resulting in confinement and extra duties. In November 1963, he was found absent without official leave (AWOL), out of uniform, and failed to carry proper identification. His punishment was restriction for 14 days and extra duties for 14 days. The Veteran was given another 14 days of restriction and extra duties in November 1963 as well as a $20 fine for lying under oath. In June 1965, he was restricted to the unit area and mess for seven days and given extra duties for seven days because he had violated a unit order against gambling. In August 1965, he underwent a special court martial for passing a bad check, making a loan with a 60 percent interest rate, insubordination, and disrespecting a superior non-commissioned officer. He was found not guilty on all charges. In December 1965, he was restricted to the mess hall building for seven days and given extra duties for seven days for gambling in the billets. In the Veteran’s March 2015 VA treatment records, he reported anxiety since he was a young adult, which now had a marked interference with his daily life. It interfered with his ability to interact with others, make decisions, concentrate, and carry out activities of daily living. In September 2015, he reported he had always been an anxious person. He believed this stemmed from his mother because he had multiple siblings with anxiety and one with diagnosed schizophrenia. He also had a recent stressor event of his brother passing away in hospice care. His mental status examination found he was clean and appropriately dressed, made appropriate eye contact, and had a baseline of slightly pressured speech. His mood was euthymic, had a full range affect, intact concentration, a good memory, good judgment, and fair insight. In March 2016, he was not doing well due to increased alcohol use. Two months later, he showed improvement in his anxiety and mood with medication and decreased alcohol consumption. He reported feeling calmer, was able to think clearer, and had improved sleep. In August 2016, a mental health attending note indicated he had been seen off and on at the mental health service line (MHSL) since 1997. He had a history of paranoia and possible delusions. However, he did not appear to be experiencing them currently. He was anxious about chronic medication use but did report stability with prescribed treatment. He was sleeping five hours a night with occasional vivid dreams. His mental status examination found he had good hygiene, appropriate clothing, made fair eye contact, and his speech was difficult to understand at times but not slurred. His mood was good, thought process mostly linear, insight fair, and judgment limited to fair. He denied suicidal or homicidal ideation, delusions, and auditory or visual hallucinations. In September 2016 a DBQ physician found the Veteran did not meet the DSM-V criteria for PTSD. However, he was diagnosed with a moderate unspecified anxiety disorder and a moderate alcohol use disorder. The examiner found it was not possible to differentiate his symptoms to each diagnosed condition because they appeared to be intertwined. The examiner opined it was not likely that the Veteran experienced PTSD because he did not meet the DSM-V criteria. The Veteran reported to the September 2016 examiner that he was raised by a grandmother who was “rough,” but he was close with his family and had close friends. He was married to his wife for 25 years. He worked at Corn Products for 23 years and retired in 1990. He reported getting along with his co-workers but that he had issues with his supervisors due to poor attendance and drinking issues. The Veteran had an in-service Article 15 court martial for passing a bad check, making a loan, insubordination, and disrespecting a superior. He was not convicted. However, he reported his confinement to his room and the abuse and threats of his commanding officer were stressor events for him. He contends that his commanding officer was racist. He kicked the Veteran to try and provoke him to physically strike back. Beginning in 1997, the Veteran had episodic outpatient care at the VA. The September 2016 examiner opined given the dysfunction of his pre- and post-military life, his anxiety disorder and alcohol use disorder were not likely to be service connected. He had occupational and social impairment due to mild or transient symptoms, which would decrease his work efficiency and ability to perform occupational tasks during periods of significant stress. An addendum opinion was received in November 2016. The DBQ physician opined it was less likely than not (less than 50 percent probability) that his anxiety disorder and alcohol use disorder were incurred in or caused by the claimed in-service injury, event, or illness. Although the stressor event mentioned by the Veteran likely involved heightened anxiety, the anxiety and self-medication would probably be time and situation limited (i.e., after not being convicted and receiving an honorable discharge the associated anxiety would no longer have a basis and likely dissipate). In August 2020, the Veteran testified he had been falsely accused of cashing a bad check for a friend in service. He was court martialed and confined to his barracks for six months which caused him anxiety. He contends that his confinement was motivated by racial discrimination. During his confinement he had difficulty sleeping, experienced crying episodes, and worried about what would happen to him. His friends brought him alcohol daily because it was the only thing that calmed him. Furthermore, his sergeant kicked him while he was lying in bed. Even though all the charges were dismissed he testified he was a wreck after the court martial. The Veteran reported he did not seek out medical care in service for his panic attacks, racing thoughts, difficulty sleeping, and fear because he was self-medicating with alcohol. He testified that he first sought treatment in the early 1970s. He told his representative that he went to a regular treating provider through the 1990s, who routinely wrote letters to his employer about his anxiety problem affecting his ability to work. He worked for Corn Products for over 20 years, and ultimately went on permanent disability in 1990 due to his anxious troubles. The Veteran underwent an independent psychological evaluation in October 2020. D.D. (Ph.D., ABPP) diagnosed the Veteran with severe MDD, unspecified anxiety disorder, and moderate alcohol use disorder. D.D. opined that the Veteran’s depression and anxiety were at least as likely as not a result of his service in the US Army as related to being falsely accused of cashing a bad check and the subsequent punishment. There was no history of psychological disorder prior to his military service. He would be absent from any position more than four times in any given month and would be unable to maintain attention and concentration for more than 50 percent of the day. His anxiety and fear would certainly impair his ability to work with others in a vocational setting. His mental status examination found no evidence of a cognitive disorder, but he had poor math and spelling skills. His recent and remote memory were poor. He had a depressed mood but no evidence of psychosis or suicidal ideation. His judgment was poor, and he had a low average range intelligence. D.D. found no evidence of malingering. Analysis The Veteran contends his acquired psychiatric disorder is due to his confinement and abuse waiting for a court martial in service. As the record shows current diagnoses of MDD, unspecified anxiety disorder, and alcohol use disorder, the first element of service connection is satisfied. The Board notes that there are conflicting opinions as to whether the Veteran’s current acquired psychiatric disorder is related to his service. In September 2016 a DBQ physician found the Veteran did not meet the DSM-V criteria for PTSD. However, he was diagnosed with a moderate unspecified anxiety disorder and a moderate alcohol use disorder. The examiner found it was not possible to differentiate his symptoms to each diagnosed condition because they appeared to be intertwined. The examiner opined it was not likely that the Veteran experienced PTSD because he did not meet the DSM-V criteria. The Veteran reported to the September 2016 examiner that he was raised by a grandmother who was “rough,” but he was close with his family and had close friends. He was married to his wife for 25 years. He worked at Corn Products for 23 years and retired in 1990. He reported getting along with his co-workers but that he had issues with his supervisors due to poor attendance and drinking issues. The Veteran had an in-service Article 15 court martial for passing a bad check, making a loan, insubordination, and disrespecting a superior. He was not convicted. However, he reported his confinement to his room and the abuse and threats of his commanding officer were stressor events for him. He contends that his commanding officer was racist. He kicked the Veteran to try and provoke him to physically strike back. The Veteran had episodic outpatient care at the VA beginning in 1997. The September 2016 examiner opined given the dysfunction of his pre- and post-military life, his anxiety disorder and alcohol use disorder were not likely to be service connected. He had occupational and social impairment due to mild or transient symptoms, which would decrease his work efficiency and ability to perform occupational tasks during periods of significant stress. An addendum opinion was received in November 2016. The DBQ physician opined it was less likely than not (less than 50 percent probability) that his anxiety disorder and alcohol use disorder were incurred in or caused by the claimed in-service injury, event, or illness. Although the stressor event mentioned by the Veteran likely involved heightened anxiety, the anxiety and self-medication would probably be time and situation limited (i.e., after not being convicted and receiving an honorable discharge the associated anxiety would no longer have a basis and likely dissipate). The probative evidence of the September 2016 and November 2016 VA examinations weighed against finding the Veteran’s acquired psychiatric disorder was related to his service. The examiners relied on sufficient facts and data as well as providing a rationale for their opinions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran underwent an independent psychological evaluation in October 2020. D.D. (Ph.D., ABPP) diagnosed the Veteran with severe MDD, unspecified anxiety disorder, and moderate alcohol use disorder. D.D. opined that the Veteran’s depression and anxiety were at least as likely as not a result of his service in the US Army as related to being falsely accused of cashing a bad check and the subsequent punishment. There was no history of psychological disorder prior to his military service. He would be absent from any position more than four times in any given month and would be unable to maintain attention and concentration for more than 50 percent of the day. His anxiety and fear would certainly impair his ability to work with others in a vocational setting. D.D.’s opinion was based on a review of available medical records and the Veteran’s clinical history, administration of the Beck Depression and Anxiety Scales, and a clinical interview with a mental status examination. His mental status examination found no evidence of a cognitive disorder, but he had poor math and spelling skills. His recent and remote memory were poor. He had a depressed mood but no evidence of psychosis or suicidal ideation. His judgment was poor, and he had a low average range intelligence. D.D. found no evidence of malingering. Accordingly, the Board affords this opinion positive probative value. (Continued on the next page)   Having considered these opinions, the Board concludes that there is at least an approximate balance of positive and negative evidence regarding the question of whether the Veteran’s acquired psychiatric disorder was related to his service. Therefore, reasonable doubt is resolved in favor of the Veteran, and service connection for an acquired psychiatric disorder to included MDD, unspecified anxiety disorder, and alcohol use disorder is granted. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Byers 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.