Citation Nr: 21023135 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-12 764 DATE: April 20, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for an acquired psychiatric disorder, diagnosed as depressive disorder and anxiety disorder, is granted. FINDINGS OF FACT 1. The Veteran experienced an in-service PTSD stressor of mortar fire directed at the base where he was stationed in Vietnam. 2. The Veteran does not have a current diagnosis of PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM 4) pursuant to 38 C.F.R. § 4.125 for the purposes of VA disability compensation. 3. The Veteran has a current acquired psychiatric disability diagnosed as depressive disorder and the anxiety disorder. 4. The depressive disorder and the anxiety disorder had onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for anxiety and depressive disorder have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(d), 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to August 1971. These matters are on appeal from a June 2011 rating decision issued by the Regional Office (RO) in Guaynabo, Puerto Rico. The Veteran testified in San Juan, Puerto Rico, at a Board videoconference hearing in January 2019 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. In June 2020, the Board reopened the claim for service connection for an acquired psychiatric disorder, including PTSD, and remanded in order to obtain medical treatment records and schedule a VA examination. A VA examination was conducted in August 2020. The VA examiner assessed that the Veteran did not have a current disability of PTSD. The VA examiner also rendered a negative nexus opinion regarding the unspecified neurocognitive disorder (dementia). A September 2020 supplemental statement of the case continued denial of the claim. This matter was before the Board again in November 2020. The Board noted that the Veteran was diagnosed with depressive disorder and an anxiety disorder during the pendency of the appeal and remanded in order to obtain a VA examination addendum opinion to addresses these diagnoses. A VA examination addendum opinion was rendered in December 2020. Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with 38 C.F.R. § 4.125 (a)); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304 (f). 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.” See Hayes, 5 Vet. App. at 66. If VA determines that the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran’s lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f)(2). No further development or corroborative evidence is required, provided that the claimed stressor is “consistent with the circumstances, conditions, or hardships of the veteran’s service.” 38 U.S.C. § 1154 (b). If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran’s lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran’s testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). “Fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The Veteran claims that when he was stationed in Vietnam, his base was frequently hit with mortar fire. The Veteran contends that this mortar fire exposure caused the claimed PTSD and acquired psychiatric disability. See January 2019 Transcript. 1. Service Connection for PTSD After a review of the evidence, both lay and medical, the Board finds that the Veteran experienced an in-service PTSD stressor under 38 C.F.R. § 3.303(f). During the January 2019 Board hearing, the Board credibly testified that he experienced fear of hostile military activity when his base was exposed to mortar fire in Vietnam. According to the DD Form 214 and military personnel records, the Veteran’s military occupational specialty (MOS) was a cook and he was stationed in a combat zone, making mortar fire exposure consistent with the circumstances of service. The weight of the evidence is against finding that the Veteran has a current diagnosis of PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM 4) pursuant to 38 C.F.R. § 4.125 for the purposes of VA disability compensation. Several private treatment records have been translated and docketed on the record in October 2018, November 2019, and April 2021. While these private treatment records indicate that the Veteran has been diagnosed with PTSD, the diagnoses were not made in accordance with the Diagnostic and Statistical Manual of Mental Disorders pursuant to 38 C.F.R. § 4.125 for the purposes of VA disability compensation. The private treatment records do not indicate which claimed stressor event they relied on, whether and/or how the traumatic event is persistently reexperienced, the duration of the disturbance, and whether the disturbance caused clinically significant distress or impairment in social, occupational, or other important areas of functioning, in accordance with the DSM 4. These private treatment record conclusory references to PTSD are outweighed by evidence in the VA examination reports showing the Veteran does not have PTSD under the criteria listed in the DSM 4 or 5. See March 2011 VA Examination; August 2020 VA Examination. As a preponderance of the evidence is against finding that the Veteran has a current disability of PTSD; the claim for service connection for PTSD must be denied. 2. Service Connection for Anxiety Disorder and Depressive Disorder After a review of the evidence, both lay and medical, the Board finds that the Veteran has a current acquired psychiatric disability diagnosed as depressive disorder and anxiety disorder. See September 2014 VA Treatment Records. As found above, the evidence demonstrates that the Veteran experienced an in-service psychological event when he was exposed to mortar fire directed at the based where he was stationed in Vietnam. During the January 2019 Board hearing, the Veteran credibly testified that he was in a state of constant fear while he was stationed in Vietnam working as a cook. The DD Form 214 and military personnel records are consistent with the Veteran’s testimony regarding location on a base in Vietnam during wartime. The Board finds that the evidence is in equipoise as to whether the symptoms of the currently diagnosed depressive disorder and anxiety disorder had onset in service. During the January 2019 Board hearing, the Veteran explained that when he was stationed in Vietnam the “feeling of fear is permanent, but it becomes part of the routine because you have to keep on working.” He testified to experiencing fear of hostile military activity. Less than a year after separation from service, the Veteran submitted to psychiatric evaluation in March 1972 and was diagnosed with anxiety neurosis. While the evaluation did not specifically reference the mortar fire, the VA examiner noted that the Veteran was “always in a worried-minded state since he was in active duty.” The VA examiner also noted that the Veteran experienced nightmares, anxiousness, poor self-control, aggressive outbursts, purposeful isolation, and irritability. The Board resolves reasonable doubt in favor of the Veteran to find that symptoms of the acquired psychiatric disability had onset in service. As the symptoms of depression and anxiety began during service, that is, had onset during service, and continued after service and were later diagnosed as depressive disorder and anxiety disorder, these disorders were directly incurred in service. See 38 C.F.R. § 3.303(d) (providing that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disability, diagnosed as depressive disorder and anxiety disorder, is warranted. Where a veteran is diagnosed with multiple psychiatric disorders, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In this case, the Board is unable to differentiate the symptomatology of the now service-connected acquired psychiatric disability from any other psychiatric disorder. As such, the Board has attributed all psychiatric symptomatology and social and occupational impairment, including all symptoms and impairment that was claimed as due to PTSD, to the now service-connected depressive order and an anxiety disorder. The RO will rate all the psychiatric symptomatology and functional impairment when assigning an initial disability rating. See 38 C.F.R. § 4.130. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.