Citation Nr: 21021454 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-38 439 DATE: April 13, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD) with symptoms of depression and anxiety, is granted. REMANDED Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence of record is at least in equipoise as to whether the Veteran’s currently diagnosed PTSD resulted from one or more in-service stressors. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD with symptoms of depression and anxiety, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served as a member of the Air Force National Guard in the state of Oklahoma from 1966 to 1976, to include a period of Active Duty for Training (ACDUTRA) from July 1966 to November 1966 that was later converted to active duty. 38 U.S.C. § 101 (24) (West 2002). The nature of the remainder of the Veteran’s service has not been verified. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. These matters were before the Board for a video-conference hearing in August 2019, before the undersigned Veterans Law Judge, and subsequently remanded for a new VA examination with regards to the Veteran’s acquired psychiatric disorder claim. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then, generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303 (b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same, and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD with symptoms of depression and anxiety. The Veteran asserts that he suffers from an acquired psychiatric disorder that directly results from his active duty service. See, January 2014 VA 21-0781, Statement in Support of Claim for PTSD. See, June 2014 VA 21-4138, Statement in Support of Claim. The first element of service connection is met, in that a February 2021 VA PTSD examination supports a current diagnosis of PTSD that conforms to DSM-5 (The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) criteria. The examiner also reported that the Veteran’s prior diagnoses of depression and insomnia were likely misdiagnoses stemming from his symptoms associated with his PTSD. The second element of service connection is also met, in that the February VA 2021 PTSD examiner accepts that the Veteran’s named stressors support the criteria for his PTSD diagnosis. The Veteran has consistently reported several stressors in support for his PTSD claim. His report of his first stressor is a military accident that occurred while he was in Tech School at Sheppard Airforce Base (AFB), where he witnessed a helicopter crash (“hit the ground because the motor quit turning”), that it hit so hard that parts were flying everywhere and two men, the pilot and the co-pilot, "shot out." The Veteran cites as his second stressor another accident, this time during a heavy snowstorm in Oklahoma when the National Guard was activated to assist with hay drop for some trapped cattle. He reported that they loaded cargo planes with 10 to 12 bales of hay, and that he was kicking some bales into place when the pilot banked a sharp turn causing the bale he was on to fall out; that he almost fell out with it, but managed to grab some cables that averted his fall. The Veteran lists as his final stressor, an accident that occurred at the Will Rogers World Airport. He reported that while he and another soldier were pulling a prop engine out of a plane to replace it, and he was sitting above the prop engine, the chain broke, and the prop engine fell and pinned him in a corner; that he had to wait for help to arrive, and was very fearful that he would be crushed by the 3000 pound prop before help arrived. The Veteran further contends that witnessing these specific in-service incidents have had a long-lasting effect on him, including regular distressing dreams about these incidents, a fear of flying, experiencing psychological and physical distress when he remembers his military experience - palpitations, shaking, stress, depression, anxiety and' panic attacks, which he believes has subsequently led to his PTSD diagnosis post service. See, January 2014 Medical Treatment Record - Non-Government Facility. The February 2021 VA examiner’s report also confirmed that the Veteran has symptoms resulting from his PTSD diagnosis, such as depressed mood, anxiety, suspiciousness, panic attacks that occurs weekly of less frequently, chronic sleep impairment, mild memory loss, and disturbances in motivation and mood. Upon review of the records, the Board finds that the Veteran's statements are internally consistent, and his reports of at least two of these specific incidents in service, including the dates (1966) and location (Will Roger World Airport, Oklahoma and Sheppard AFB) are also consistent with the record. See, Military Personnel Records. Further, there is no evidence of record that directly contradicts the Veteran’s consistent report of his in-service stressors. Consequently, the Board find the Veteran’s report competent and credible. It should also be noted that the Court has recently held that the mere lack of service department confirmation of a claimed stressors or other assertions cannot serve as the sole basis to discredit the Veteran’s statements in support of the stressors or other supporting evidence. In addition, a December 2013 private record of an initial interview for an evaluation for PTSD reflects an opinion from a psychologist stating that these named stressors support a chronic PTSD diagnosis, which the psychologist found was negatively impactful. See, January 2014 Medical Treatment Record - Non-Government Facility. The Board also finds that the final element of service connection, a positive nexus, is also met in this case, in that the most probative medical opinion of record, the February 2021 VA examination, supports the existence of a nexus between the Veteran’s currently diagnosed PTSD and his active military service. Significantly, this medical conclusion, which was rendered by a VA psychologist suggests that this medical professional finds the Veteran’s report about his in-service stressors to be credible and may therefore serve to help independently establish the asserted stressors. The Veteran also testified to same during his August 2019 Board hearing. Most importantly, as was noted previously, there is also no probative evidence of record that directly contradicts the February 2021 VA examiner’s positive nexus finding. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Given all of these facts, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran has PTSD that is related to an in-service stressful event. Therefore, the Board will give the Veteran the benefit of the doubt in this matter and find that a grant of service connection for an acquired psychiatric disorder, diagnosed as PTSD with symptoms of depression and anxiety, is warranted. REASONS FOR REMAND 1. Entitlement to total disability based on individual unemployability (TDIU) is remanded. The current evidence of record reflects that the Veteran retired in June 2009, following a leave of absence that resulted from a work-related job injury in April 2005. The records contemporaneous with the Veteran's retirement reflect functional impairment stemming from his nonservice-connected knee disability that occurred as a result of his April 2005 injury which gave rise to a successful claim for worker's compensation. The Veteran also testified that his retirement was also contemporaneous with his other ongoing health conditions, including his obstructive sleep apnea (now service-connected at 50 percent) and his acquired psychiatric disorder (that he has now been granted service connection for in this decision). See, August 2019 Hearing Transcript. The Board further notes that although the evidence of record alludes to the Veteran's receipt of workers compensation benefits, the records and decision in connection with such a claim are not associated with the Veteran's file. As such, a remand for this pertinent evidence is necessary before the Veteran’s TDIU claim can be adjudicated on its merits. The matters are REMANDED for the following action: 1. The AOJ must contact the Veteran to request that he identifies any claim for workman's compensation benefits filed with the Department of Labor's Office of Workers' Compensation Programs (OWCP) and/or Oklahoma Workers' Compensation Commission. With the Veteran's authorization, the records associated with any identified claim must be obtained and associated with the file. With the Veteran's authorization, the AOJ must also contact Sedgwick (Claims Management Services Ltd.), the third party vendor identified by the Veteran’s former employer, Southwest Airlines, in May 2014 as the facilitator of its workers compensation benefits, to obtain records and a decision in connection with such a claim following the Veteran’s April 2005 on-the-job injury. If any identified records are found to be unavailable for review, and/or there are no responses following these requests for records, such must be memorialized within the Veteran's file. 2. After the above development, and any additional development deemed necessary has been completed, the AOJ should readjudicate the Veteran’s TDIU claim on appeal. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, 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.