Citation Nr: 21022945 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 18-20 013 DATE: April 19, 2021 ORDER The Veteran’s motion to vacate the June 2019 Board of Veterans’ Appeal (Board) decision to the extent that it denied service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, is granted. FINDINGS OF FACT 1. At the time that the Board issued the June 2019 decision that denied service connection for an acquired psychiatric disorder, it mischaracterized and misquoted whether any examination has said the Veteran’s mental health disability was due ot his time in service. 2. Resolving all doubt in favor of the Veteran, the Veteran’s mental health disability was aggravated by his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria to vacate the June 2019 Board decision to the extent that it denied service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 7104; 38 C.F.R. §§ 19.4, 19.7, 20.904. 2. The criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1987 to May 1995. First, it is important to note that the Veteran is already at a 100% (total disability based on individual unemployment) rating since March 2015. Initially, the Board notes that in July 2019 it received a writing statement from the Veteran’s representative in which he moved to vacate the June 2019, Board decision to the extent that it denied service connection for an acquired psychiatric disorder. In this regard, the Veteran’s representative asserted that the Board should vacate the June 2019, decision because the decision mischaracterized and misquoted the summation of evidence because while the Board summarized that “no examiner opined the Veteran’s mental health disability was due to his time in service,” the Board had also stated a June 2015 examiner opined that the Veteran’s psychiatric disorder was “more likely than not incurred during his military service and was aggravated by his service-connected an non-service-connected disabilities.” A review of the record on appeal and the June 2019 Board decision revels the Board did in fact use this confusing language. Controlling laws and regulations provide that the Board has an obligation to review and consider all evidence of record when adjudicating claims for VA benefits. See 38 U.S.C. § 7104(a); 38 C.F.R. §§ 19.4, 19.7. They also provide that the Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. With the above criteria in mind, the Board agrees with the Veteran’s representative that the June 2019 decision did mischaracterize the evidence. Therefore, the Board finds that Veteran was denied due process of law as to the claim for service connection for an acquired psychiatric disorder. The Board apologies for the oversight. Accordingly, the Board vacates the June 2019, decision to the extent that it denied service connection for an acquired psychiatric disorder. Id. Service Connection Claim Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the veteran’s description of the claim, the symptoms the veteran describes and the information the veteran submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the claim for service connection for PTSD and anxiety pursuant to Clemons and re-characterized it as shown on the cover page of this decision. In a July 2013 statement, the Veteran said while serving in Oman, he was one of the first responders for a plane crash and he saw bodies of people he knew. The Veteran also reported one of his best friends committed suicide, was having marital problems, and was in firefights. Additionally, a statement from a friend reported the Veteran’s behavior changed after his time in service and that the Veteran struggled with depression and anxiety. The Veteran has been diagnosed with a mental health disability. In October 2012, a non-VA behavioral specialist saw the Veteran four times and diagnosed the Veteran with PTSD, saying since his time in service, the Veteran had suffered from anxiety, sleep problems, nightmares, and avoidant behavior. The Veteran’s STRs are negative for treatment or symptoms of a mental health disability while in service. In April 2013, the Veteran was seen for an initial evaluation for his mental health. The Veteran reported being shot at while in service, seeing people die, having a friend commit suicide, and having his wife cheat on him while he was deployed. The examiner did an extensive review of the Veteran’s military and social and occupational history. The Veteran stated he had not had any periods of sobriety since his discharge from the military, saying he got intoxicated at least four times per week. The examiner noted the Veteran was not currently presenting with specific and identifiable traumatic events that could meet the criteria for PTSD. The examiner also noted the Veteran’s reports during this interview must also be interpreted with caution given the numerous inconsistencies reported during this evaluation and treatment completed in 2010. The examiner noted the Veteran’s report compared to his medical record and previous reports contained numerous inconsistencies. For example, the examiner noted the Veteran reported he was deployed twice to support Operation Desert Storm/Desert Shield, but this was in contrast with what he reported in 2010 and what was reported on his DD 214. The examiner also noted several other inconsistencies. The examiner opined all of the Veteran’s current problems were related to his alcohol use. The examiner also opined that regardless of the etiology of his diagnosis of anxiety, the Veteran did not meet the criteria for PTSD. An August 2013 examiner diagnosed the Veteran with an anxiety disorder and upon full examination, this examiner reported the Veteran did not meet the criteria for a diagnosis of PTSD. The examiner opined the Veteran’s psychiatric disorder was less likely than not incurred in or due to the Veteran’s time in service and was substance induced. The examiner noted the Veteran’s STRs were negative for anxiety related incidents while in service. In June 2015, the Veteran had an examination for his mental health and his diagnosis of anxiety was noted. The examiner opined the Veteran did not have any other mental health diagnosis. The examiner reviewed the Veteran’s file and saw the Veteran in person and reported the Veteran’s symptoms included anxiety, depressed mood, panic attacks, sleep impairment, and suicidal ideations. The Veteran himself reported he did not have depression or anxiety prior to his time in service, but after watching friends and fellow service members die, he began to isolate himself. The examiner opined the Veteran could not sustain the stress from a competitive work environment. The examiner opined the Veteran’s tinnitus, back pain, radiculopathy, knee pain, and GERD have aggravated the Veteran’s anxiety disorder. The examiner went on to discuss the statement by the Veteran’s friend who said the Veteran changed since service and medical literature that said active military service impacts depression and anxiety along with literature stating tinnitus is associated with physical pain and psychological disorders. The examiner opined the Veteran’s psychiatric disorder was more likely than not incurred during his military service and is aggravated by his service connected and non-service connected disabilities. The Veteran had another examination for his mental health in April 2018. The examiner opined the Veteran did not have a diagnosis of PTSD but did note the Veteran was diagnosed with another mental health disability. The examiner reviewed the Veteran’s history, both military and non-military. The examiner also considered the Veteran’s subjective complaints about his marital problems and his ability to keep friends and opined the Veteran’s depressive disorder was less likely than not due to his time in service. The examiner noted the Veteran’s descriptions of nightmares and other trauma-related symptoms were of questionable reliability. The April 2018 examiner noted the Veteran’s descriptions of stressors, if accurate, would meet the requirements for PTSD. However, the examiner noted the Veteran’s descriptions of his stressors have exhibited inconsistencies over time and said the Veteran’s score on the Phobic Anxiety scale fell within the range that is associated with over-reporting. The examiner noted in this evaluation, the Veteran reported the name of the deceased pilot and said his friends used to crack jokes about his nick name. However, in November 2010, the Veteran reported he did not know the pilot’s name. This examiner noted this stark inconsistency, saying it would be expected that, had the Veteran been friends with the deceased, as he stated today, he would have remembered the pilot’s name in 2010. The examiner went on to mention several other inconsistencies in the Veteran’s account today and previous accounts to other examiners. For these reasons, the examiner opined that the Veteran’s diagnosed disability of depressive disorder with anxious distress was less likely than not due to in-service stressors. The Board notes the Veteran was found to be disabled by the Social Security Administration (SSA) due to his anxiety disorder and his back problems. However, the Board notes SSA decisions are not binding on VA and the records from SSA do not show the Veteran’s conditions were incurred in and more likely than not related to his time in service. The Board has considered all of the evidence of record pertaining to the Veteran’s claim to service connection for his diagnosed psychiatric disorder, including the Veteran’s statements, the statements made by his friend, and the medical evidence. There are clear indications in this record that the Veteran is not an accurate historian of his disabilities, and may, in fact, be aggrandizing some of his claims. The Board finds that while the weight of the evidence goes against showing the Veteran’s psychiatric disorder was incurred during his time in service as numerous examiners have opined the Veteran’s accounts contain inconsistencies, the Board notes that the June 2015 found the Veteran’s diagnosed psychiatric disorder was aggravated by his service connected and non-service connected disabilities. While the examiner was unable to say which specific disabilities were responsible, the Board will construe this to mean the Veteran’s psychiatric disorder is due to his service-connected disabilities (which have been found by the VA to be severe in light of the TDIU finding made prior to this determination) and will grant the claim. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Further development of this case, in light of the TDIU finding, is simply not warranted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.