Citation Nr: 21022318 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 11-17 337 DATE: April 15, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a sleep disorder is remanded. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran is currently diagnosed with PTSD. 2. The Veteran’s PTSD is etiologically related to his credible in-service stressors. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria to establish service connection for PTSD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from October 1969 to May 1971, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, this matter was previously before the Board in July 2014, November 2017, July 2018, and November 2019. In its July 2014, November 2017, and November 2019 decisions, the Board remanded the matters for additional development. In its July 2018 decision, the Board denied entitlement to service connection for PTSD and a sleep disorder. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court) which, by way of an April 2019 Order, granted the parties’ April 2019 Joint Motion for Remand (JMR), vacated the Board’s July 2018 decision, and remanded the matter for further adjudication consistent with the JMR. In an October 2016 rating decision, the RO granted service connection for unspecified depressive disorder and assigned a 30 percent disability rating, effective May 8, 2007. However, the appeals seeking entitlement to service connection for PTSD and a sleep disorder remain pending before the Board. The Board has limited the discussion below to the relevant evidence required to support its findings of fact 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Specific to claims of PTSD, service connection requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). 38 C.F.R. § 3.304(f). As the instant case was certified to the Board prior to August 4, 2014, a diagnosis of PTSD must be made in accordance with the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. § 4.125 (as in effect prior to August 4, 2014). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran’s military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran “engaged in combat with the enemy.” 38 C.F.R. § 3.304(f). If VA determines that the veteran did not engage in combat with the enemy, that he did engage in combat but that the alleged stressor is not combat related, or that the stressor is not related to the fear of hostile military or terroristic activity, then a veteran’s lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. Id. Service department records must support, and not contradict, the claimant’s testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994); see also Fossie v. West, 12 Vet. App. 1, 6 (1998). The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of a psychiatric disorder, to include PTSD, is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana, 24 Vet. App. at 443 n. 4; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Veteran asserts that he currently has PTSD which is related to, or caused by, events during his active service in the Republic of Vietnam. Specifically, the Veteran reports being on a convoy through the An Khe Pass in November 1970 when some of trucks started taking sniper fire, and the truck his friends were in took two bullets through the windshield and resulted in the death of the passengers. The Veteran also reports an incident that occurred in April 1971 when he was awakened by extreme artillery fire because his base was being overrun by a battalion of Viet Cong sappers. As a result of those incidents, the Veteran reports that he was in fear of hostile enemy activity prompting him to request a 7-day leave in May 1971, which resulted in his being transported in a C130 that was filled with body bags. As an initial matter, and after resolution of all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has a current diagnosis of PTSD made in accordance with the DSM-IV criteria. While VA examiners have determined that the Veteran does not meet the criteria for PTSD under either DSM-IV or DSM-5, multiple private treatment providers have found that the Veteran meets the criteria for PTSD under DSM-IV. See VA examination reports dated June 2016, April 2018, January 2020; VA medical opinions dated March 2018, April 2018, January 2020, February 2020; June 2007 private examination report by Dr. J.G.; June 2007 private examination report by Dr. M.D.; August 2007 private examination report by Dr. K.M.R.; June 2012 private examination report by Dr. K.M.R.; June 2012 private examination report by Dr. J.G.; July 2018 private PTSD Disability Benefits Questionnaire (DBQ). Notably, Dr. E.T., a psychologist, completed a checklist in the July 2018 private PTSD DBQ to show how the Veteran’s symptoms met Criteria A through F for PTSD under DSM-IV, and in a June 2012 private examination report, Dr. K.M.R., a psychologist, provided a detailed discussion of how the DSM-IV criterion for PTSD were satisfied. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of PTSD under DSM-IV. Therefore, a current disability is established. Next, the Board finds that the record contains credible supporting evidence that at least one of the Veteran’s claimed stressors actually occurred, as previously noted in its July 2018 decision. A September 2016 response from the Defense Personnel Records Information Retrieval System corroborates one of the Veteran’s claimed in-service stressors. Finally, the Board finds that there is probative medical evidence of a causal relationship between the Veteran’s current symptomatology and the specific claimed in-service stressors. Multiple competent private treatment providers, to include psychiatrists and psychologists, have opined that the Veteran’s PTSD is causally related to the specific stressors from his service in Vietnam. See June 2007 private examination report by Dr. M.D.; June 2012 private examination report by Dr. K.M.R.; July 2018 private examination report by Dr. E.T. The Board affords great probative value to the positive medical opinions provided by Drs. M.D., K.M.R., and E.T. given their expertise in psychology and psychiatry, their thorough clinical interviews of the Veteran and review of his treatment records, and consideration of his lay reports of symptoms and in-service stressors. For the sake of completeness, the Board notes that no VA examiner has provided an adequate etiology opinion addressing the Veteran’s PTSD, as they all determined that the Veteran did not meet the diagnostic criteria. See VA medical opinions dated June 2016, March 2018, April 2018, January 2020, February 2020. Therefore, the only adequate etiology opinions weigh in favor of the Veteran’s claim. Based on the foregoing, and after resolution of all reasonable doubt in the Veteran’s favor, the Board finds that service connection for PTSD is warranted. The appeal is therefore granted. REASONS FOR REMAND 1. Entitlement to service connection for a sleep disorder is remanded. The Veteran asserts that he is entitled to service connection for a sleep disorder, to include as secondary to his now service-connected PTSD. The Board finds that remand is necessary prior to appellate review of this claim. In a January 2020 VA medical opinion, the VA examiner opined that the Veteran’s claimed sleep disorder was less likely than not proximately due to or the result of the Veteran’s service-connected condition, reasoning, “No diagnosis of sleep disorder. His sleep issues is (sic) likely a symptom of his depression.” However, private treatment records dated October 2017 to October 2018 indicate that the Veteran’s past medical history includes “Sleep disorder,” and private treatment records dated March and September 2016 indicate that the Veteran’s past medical history includes “Sleep Disturbance Unspec.” The Board finds that this evidence should be addressed on remand. Additionally, if the Veteran is found to have a separately diagnosed sleep disorder, the Board requests that the RO obtain medical opinions addressing secondary causation and aggravation by the Veteran’s service-connected psychiatric disabilities (depressive disorder and PTSD) as well as his service-connected gastrointestinal disabilities (irritable bowel syndrome with duodenal ulcer and duodenal spasms), since the record reflects that the Veteran has also experienced sleep disturbances as a result of gastrointestinal symptoms. See June 2007 Board hearing transcript; February 2008 lay statement from M.B. Accordingly, the matter is REMANDED for the following action: 1. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran’s claimed sleep disorder, preferably from the VA examiner who completed the January 2020 VA medical opinion, if possible. If this is not possible, the opinion should be rendered by another appropriate examiner. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a thorough review of the claims file, the examiner is asked to respond to the following: (a) Determine if the Veteran has a current sleep disorder separate and apart from his diagnosed psychiatric disabilities (depressive disorder and PTSD). In doing so, please refer to any applicable diagnostic criteria provided in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). DSM-5 does not apply to this matter. * Specifically, address private treatment records dated October 2017 to October 2018 indicating that the Veteran’s past medical history includes “Sleep disorder,” and private treatment records dated March and September 2016 indicating that the Veteran’s past medical history includes “Sleep Disturbance Unspec.” (b) For any separately diagnosed sleep disorder, please provide an opinion as to the following: i. Whether it is at least as likely as not (50 percent probability or greater) proximately due to OR aggravated by the Veteran’s service-connected psychiatric disabilities (depressive disorder and PTSD). ii. Whether it is at least as likely as not (50 percent probability or greater) proximately due to OR aggravated by the Veteran’s service-connected gastrointestinal disabilities (to include irritable bowel syndrome with duodenal ulcer and duodenal spasms). * Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non-service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). A complete rationale should be provided for each opinion. 2. Thereafter, readjudicate the remanded claim. In so doing, ensure that all applicable theories of entitlement are addressed. K. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.