Citation Nr: 21021738 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-67 522 DATE: April 13, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) and depression is granted. FINDING OF FACT The Veteran’s PTSD and depression are at least as likely as not related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD and depression have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1966, to April 1970 and is a Veteran of the Vietnam Era. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 5, 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). The Veteran and his representative appeared for a videoconference hearing (Board Hearing) before the undersigned Veteran’s Law Judge (VLJ) in November 2020. A transcript of that hearing is attached to the Veteran’s file. 1. Entitlement to service connection for an acquired psychiatric condition. After review of the record, the Board finds that the preponderance of the evidence is in favor of a finding for entitlement to service connection for a psychiatric condition (to include posttraumatic stress disorder (PTSD), depression, anxiety and/or others). The Veteran claims that he suffers from PTSD due to traumatic events he experienced while serving on active duty at Udorn Air Force Basse (AFB), Thailand. The first traumatic event occurred over several days when, what is believed to be enemy troops, fired at and into the base. The second traumatic event occurred the day before the Veteran was to transfer home from Thailand when an aircraft lost control and crashed into several buildings, including the building next to the Veteran’s barracks, and numerous people at the base died as a result of that crash. The Veteran did not participate in direct combat operations. VA concedes the occurrence of the claimed traumatic event, stated as a PTSD stressor. See, Rating Decision, May 2016, paragraph 3 of section 4 (“Your reported stressor was consistent with the places, type and circumstances of your service so your statement was adequate to establish the occurrence of the claimed stressor.”); see also, VA Initial PTSD Disability Benefits Questionnaire (DBQ), May 2016, Section 3 – Stressors – the VA psychologist found that both stressors met the DSM-5 Criteria A to be adequate to support the diagnosis of PTSD and were related to the Veteran’s fear of hostile military or terrorist activity. The Veteran is also service connected for his bilateral hearing loss (BHL) and tinnitus disabilities (combined referred to as “hearing disabilities”). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f), that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). In order to be entitled to service connection for PTSD, there must be medical evidence of PTSD, medical evidence that establishes a link between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Here, the Veteran’s stressors have been corroborated and conceded to by VA. In the July 2017 rating decision on appeal, the AOJ found that the Veteran had submitted new and material evidence (NME) to warrant re-opening of the claim. The Board will not disturb this finding. However, the AOJ interpreted Dr. J.I.’s private psychological evaluation - Mental Disorders (other than PTSD) DBQ, dated April 2017, to provide a current diagnosis of a mental disorder, but that it did not link that disability to an event in service. As described in more detail below, the Board reads Dr. J.I.’s opinion to affirmatively connect the Veteran’s depressive disorder to his service-connected hearing loss and tinnitus disabilities. The AOJ sought another VA medical opinion and evaluation. The VA examiner for the June 2017 psychological evaluation of the Veteran confirmed a diagnosis of unspecified depressive disorder. He also recorded that the Veteran reported that he has had problems getting along with other people because of difficulties hearing them and that he gets concerned that other people are talking about him, thus finding experiences less enjoyable. The examiner added a note that the Veteran was not observed to have problems with hearing during his interview, though the examiner did not distinguish the setting in which the Veteran was examined with other settings the Veteran is exposed to such as a work environment, areas with ambient noise, or crowded locations. This examiner did not address notes and remarks from the Veteran’s private medical providers which were favorable to the Veteran’s claim and relied on to find mental health conditions which were stated to be caused by his service or exacerbated by the Veterans’ service connected hearing disabilities. The examiner emphasized the Veterans’ throat cancer and physical residuals from his laryngectomy. The examiner opined that it is less likely than not that the Veteran’s diagnosis of unspecified depressive disorder was proximately due to or the result of hearing loss and tinnitus. The Veteran submitted a private Mental Disorders (other than PTSD) DBQ, dated April 2017, prepared by Dr. J.I., psychologist. After an in-person evaluation of the Veteran and review of his records, Dr. J.I. indicated a diagnosis of depressive disorder due to tinnitus and hearing loss. Dr. J.I. described the Veteran’s service history, including events which impacted his service-connected hearing loss, and his current symptoms and their impact on his ability to relate with others and to function. The Veteran was noted to isolate at home and sleep apart from his wife. Dr. J.I. opined that the Veteran meets DSM-5 criteria for depressive disorder due to hearing loss and tinnitus which is “most likely than not due to acoustic trauma sustained while in the service.” The Board reads this on its plain meaning, that the Veteran has a diagnosed depressive disorder and that the evaluating psychologist finds that is it due to acoustic trauma he suffered while in service. Though Dr. J.I. did not state so in specifical “legal” terminology that the disability has its nexus to his military service on a secondary basis to his service-connected disability, her opinion is the same. The Veteran also submitted a PTSD DBQ prepared by Dr. H.K., dated in January 2017, in which she confirmed a diagnosis of PTSD exacerbated by tinnitus under the DSM-5 criteria. Dr. H.K. recorded that, due to his hearing problems, when the Veteran’s family comes over, two of his older grandchildren help interpret what others are saying for him, and he indicated increased conflict, irritability, isolation, tension due to his hearing problems. Depressed mood, strong irritable and aggressive behavior; feelings of being alienated from people; exaggerated startle response; chronic sleep disturbance and nightmares; recurrent, involuntary, and intrusive memories; and significant symptom-related distress or functional impairment were all recorded. Dr. H.K. remarked that the Veteran’s current symptoms are consistent with combat trauma, which is aggravated by tinnitus and that based on her evaluation of the Veteran it is reasonable to conclude that he meets diagnostic criteria for chronic PTSD exacerbated by tinnitus. In the Veteran’s May 2016 VA PTSD psychological evaluation, the VA examiner found the Veteran’s clamed stressors did meet the Criteria A requirements and supported a diagnosis of PTSD and that they were related to his fear of military or terrorist activity. However, the VA examiner indicated that the Veteran did not meet any of the other DSM-5 diagnostic criteria. The VA examiner recorded that the Veteran does not like large crowds, is jumpy when he hears loud noises, and does not like people coming up behind him. Also, no symptoms, such as depression, suspiciousness, chronic sleep impairment, and impaired impulse control, were noted. Therefore, the VA examine did not find a diagnosis of any psychiatric disorder existed. The Veteran claims that this VA evaluation is inadequate and that the staff were confrontational. The Board finds the lack of acknowledging any mental health symptoms to be inconsistent with the record as a whole and discounts the Veteran’s credible lay statements, as well as her findings that the Veteran’s stressors relate to a fear of hostile military or terrorist activity. Therefore, the Board affords this psychological evaluation to be of limited probative value. Giving the benefit of the doubt to the Veteran, the Board finds that the record reflects the Veteran has a current diagnosis of an acquired psychiatric condition to include PTSD and depression. The Board finds the private medical evaluations to be consistent with the Veteran’s lay testimony and adequate in their findings, analysis, and rationale. Thus, they are afforded high probative value. The May 2016 VA psychological evaluation is shown to not be consistent with the remainder of the record, and it is afforded limited probative value, noting the finding that the Veteran’s stressors meeting the Criteria A requirements are consistent with the rest of the evidence and are favorable to the Veteran. These stressors are without question related to his military service. Further, both private medical evaluators indicate that the Veteran’s psychiatric condition is at least aggravated by his service-connected hearing loss disabilities. 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). The Veteran’s claim for entitlement to service connection for PTSD and depression is granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, 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.