Citation Nr: 21021025 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 20-17 046 DATE: April 9, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The Veteran’s acquired psychiatric disorder began during active service. CONCLUSION OF LAW 1. The criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 2003 through September 2004, with various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) spanning from July 2002 through July 2018 in the Reserves. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially filed separate claims for depression and anxiety in June 2017, however the Board has recharacterized the claim to encompass all relevant psychiatric diagnoses, as reflected on the title page above. See Clemons v. Shinseki, 23 Vet. App. 1, 3 (2009) (holding that a single claim can encompass more than one condition and that the scope of a claim is generally not limited to a specific diagnosis). The Board has limited the discussion below to the relevant evidence required to support its finding of face and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to an acquired psychiatric disorder to include depression and anxiety is granted. The Veteran contends that he suffers from depression and anxiety, reclassified here as an acquired psychiatric disorder, as a result of his time on active duty and in the Reserves. He claims he developed depression, anxiety, and PTSD mainly as a result of his active duty deployment to Kosovo in 2004 where he acted as a casualty notification officer. The threat of impending deployments that would require him to leave his young family also weighed heavily upon him. The Board concludes that the Veteran has a current disability that began during 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). Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). This includes both active duty and ACDUTRA. 38 U.S.C. § 101(24)(b); See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010) (clarifying that there must be some evidence of in-service incurrence during the ACDUTRA). Service connection may also be granted for INACDUTRA but only for a disability that was incurred in or aggravated by the line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24)(c). Establishing service connection generally requires (1) evidence of a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a causal connection or “nexus” between the claimed in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d. 1163, 1166-67 (Fed. Cir. 2004). The Veteran’s service treatment records (STRs) show that he was initially referred to behavioral health upon return from his deployment to Kosovo in 2004. The Veteran himself reported he began feeling symptoms of depression and anxiety while deployed in Kosovo. Aside from the referral upon return, there is no other mention of anxiety, depression, or PTSD in the Veteran’s service records during that time. However, the Veteran’s STRs show consistent treatment for depression and/or anxiety and alcohol abuse beginning roughly in 2010, just after his January 2009 through May 2009 ACDUTRA. This treatment appears to have continued through INACDUTRA until the Veteran left the Reserves in 2018. Additionally, any threat of deployment or assignment as a casualty notification officer appears to have incurred additional complaints or treatment for depression or anxiety as well as alcohol abuse, as the Veteran reported during these times he would feel anxious about leaving family or fear of the hostility and violence he heard about in Kosovo and as a casualty notification officer. After the Veteran left the Reserves, he received a positive depression screen and a positive PTSD screen in May 2018. The majority of the medical records show treatment for depression, anxiety and alcohol abuse, yet rarely mention PTSD. A July 2018 VA examination considered both PTSD and depression but did not directly or separately address anxiety. In regard to PTSD, the VA examiner denied service connection and stated that the only stressor, acting as a casualty notification officer for one servicemember’s family after an incident with an IED, did not qualify the Veteran for service connection. The examiner did not address or consider the Veteran’s active duty service in Kosovo or any other potential stressors noted by the Veteran. In regard to depression, the VA examiner identified a history of depression as well as current symptoms of depression, but instead reported the current diagnosis as situational depression intermingled with alcohol abuse and stated that it would be impossible to offer a nexus opinion. The examiner did not address the claim for anxiety, or any other notations of depression that were listed without alcohol abuse in the Veteran’s STRs. An October 2020 private opinion indicates a positive current diagnosis for depression, as well as a positive nexus to the Veteran’s 2004 active duty deployment in Kosovo. However, this psychologist did not reconcile the different terms of service when evaluating the Veteran’s STRs and treatment history – he did not fully appreciate or explain the difference between the types of service (active duty, ACDUTRA, INACDUTRA) and the varying levels of physical threat or stress and anxiety associated with each type of service. The private psychologist also did not reconcile the Veteran’s INACDUTRA records and treatments for alcohol abuse and notations of situational depression intermingled with the alcohol abuse. While neither opinion encompasses all pieces of evidence or addresses all aspects of the claim and are therefore not conclusive, the STRs and other medical records clearly document continuity of symptomatology that began shortly after a period of ACDUTRA, through INACDUTRA and to today. 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 disorder, to include depression and anxiety, is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. The Veteran contends that he suffers from PTSD as a result of his active duty in Kosovo and having to make casualty notification calls for servicemembers who were injured or killed while deployed. The Veteran asserts he suffered nightmares and flashbacks leading up to other potential deployments and feared for his own life and that of the soldiers he would be leading as a result of his past experience. Although the Board regrets an additional delay, a remand is necessary to ensure there is a complete record upon which to decide the Veteran’s claim and to afford him every possible consideration. In order for a diagnosis of PTSD to be sufficient for service connection, it must be clearly diagnosed using the DSM-5 criteria. Under 38 C.F.R. § 3.304(f)(3) a VA psychiatrist or psychologist, or one with whom the VA has contracted, must confirm the PTSD diagnosis where the claimed stressor includes “fear of hostile military or terrorist activity.” The Veteran’s service treatment records do not contain any indication of diagnosis or treatment for PTSD. The earliest record in the Veteran’s claims file for PTSD is a positive screen in May 2018, and a subsequent diagnosis in June 2018 for PTSD and MDD, however this examination did not address or identify the stressors for comparison’s sake. The Veteran received a VA examination in July 2018, where the examiner denied a diagnosis of PTSD. However, the examiner appears to have only considered one specific incident and did not address the Veteran’s active duty service in Kosovo. Furthermore, the explanation provided addresses both depression and PTSD together in one explanation and does not separately indicate why PTSD was not diagnosed, instead repeating the same language in both rationales. Alternatively, the private opinion provided in October 2020 indicated a current diagnosis of PTSD. This private psychologist did address the Veteran’s deployment to Kosovo but did not differentiate between the Veteran’s different periods of service. As stated above, the private psychologist did not distinguish when the Veteran’s symptoms or potential stressors occurred – during active duty, ACDUTRA or INACDUTRA. As stated above, neither opinion was conclusive in regard to a PTSD diagnosis including addressing the potential stressors. Therefore, a remand is necessary to clarify if the Veteran currently has a diagnosis of PTSD considering all of the identified stressors claimed by the Veteran. The matters are REMANDED for the following action: 1. Obtain any additional treatment records from the VA or private medical centers, to include records from June 2020 to the present. 2. After obtaining any outstanding records to the extent possible, ask a VA examiner of the appropriate expertise to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The evidentiary record, including a copy of this remand, must be made available to and must be reviewed by the examiner. The examiner is asked to opine whether the Veteran currently has a diagnosis for PTSD in accordance with the DSM-V; and if so, whether it is at least as likely as not that the Veteran’s PTSD is related to service, to include the Veteran’s deployment to Kosovo and his duties as a casualty notification officer. In offering any opinion, the examiner should consider the full record, to include the Veteran’s lay statements and prior medical records. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. (Continued on the next page)   3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. R.R. WATKINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Boivin, 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.