Citation Nr: 21023364 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-53 787A DATE: April 20, 2021 ORDER Entitlement to service connection for a psychiatric disorder, to include major depressive disorder and other specified trauma disorder, is granted. FINDING OF FACT The Veteran’s major depressive disorder/other specified trauma disorder is of service origin. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for major depressive disorder/other specified trauma disorder have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1978 to October 1980. He died in February 2020. The Veteran’s spouse has been substituted in as the appellant. The appellant appeared at a hearing before the undersigned Veterans Law Judge in February 2020. With regard to the claim of service connection for posttraumatic stress disorder (PTSD), the Board notes the holding of the United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009) and has concluded that it is applicable here. In Clemons, the veteran specifically requested service connection for PTSD; the Board narrowly construed the claim and denied service connection for PTSD based on the absence of a current diagnosis, but the medical record also included diagnoses of an anxiety disorder and a schizoid disorder. The Court, in vacating the Board's decision, pointed out that a claimant cannot be held to a "hypothesized diagnosis - one he is incompetent to render" when determining what his actual claim may be. The Court further noted that the Board should have considered alternative current conditions within the scope of the filed claim. Id. In this case, while the claim has been adjudicated by the RO and certified to the Board as a claim for service connection for PTSD, the issue should be expanded to include all psychiatric disorders. Under Clemons, other diagnoses are to be considered as part of the underlying claim. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.§§ 1131; 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303(d). 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). PTSD is not a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable with respect to that claim. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). 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. For purposes of this paragraph, "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. 38 C.F.R. § 3.304 (f)(3). In the current case, the Veteran has not claimed that his stressor is related to a combat situation. The Veteran has reported on numerous occasions that his stressor was related to a tornado which occurred in Lawton, Oklahoma in April 1979 that caused extensive damage. He has indicated that his unit was called to help with the cleanup and that in the process he witnessed destruction and several dead and injured individuals. The Board notes that the Lawton area was devastated by a tornado on April 10, 1979. The Veteran’s service personnel records reveal he was stationed at Ft. Sill when the tornado occurred and that his military occupational specialty at that time was listed as a dump truck driver. In a June 2015 memorandum, a formal finding of a lack of information to verify stressors in connection with PTSD was made. It was noted that a PTSD claim was received in August 2014. The Veteran stated that in 1980 while at the DMZ in Korea, he was driving a military truck, waiting to refuel, when the truck in front of him backed up killing someone who had been squatting behind the truck. The Veteran also stated that in the summer of 1979 at Fort Sill Oklahoma, a tornado hit Lawton, Oklahoma and he went on a search and recovery mission where he found dead bodies. It was indicated that service treatment records and personnel records were reviewed. There was no evidence of PTSD, treatment for a mental health condition or evidence of an in-service stressor. Personnel records did show that the Veteran was serving at Fort Sill, Oklahoma at the time of the tornado in April 1979. VAMC treatment records were also reviewed. There was treatment for PTSD and depression in the records. The records reported the same stressors provided by the Veteran; however, there was not enough information in the VAMC records to corroborate a stressor. It was also noted that a DPRIS request was made in May 2015 requesting verification of the stressor in which the Veteran stated he participated in the recovery of the fatalities and those injured following the tornado. A response was received in which DPRIS stated, “We reviewed the history submitted by the 299th Engineer Battalion, Fort Sill, Oklahoma for the period of 1943 to 1992. The history did not provide any information or report on the April 10, 1979 incident. We reviewed other historical documents that were available and were able to document the April 10, 1979 tornado, in which 3 individuals were killed and approximately 100 injured. They were not able to document that the Veteran assisted in the recovery of the dead and wounded.” It was also indicated that a search was done on Google, search.mil, and the Lawton Constitution online news website to help verify if there was military support during the recovery and clean-up following the April 1979 tornado in Lawton, OK. No records showed there was military participation in the clean-up and recovery in Lawton. A 30 day letter was sent to the Veteran on May 13, 2015, requesting more specific PTSD stressor information. A response was received dated May 22, 2015. The Veteran did not provide any further details with regard to the stressor reported while serving in Korea. The events he reported for the stressor regarding the tornado are date specific, but do not contain specific traumatic events that can be verified. Additionally, the locations of incidents do not coincide with the locations verified via official military documents. The stressor therefore could not be conceded. In connection with the formal finding, the Veteran submitted a newspaper article indicating that members from Ft. Sill assisted in the aftermath of the tornado, including sending supplies and ambulances. In a July 2019 deferred rating decision memorandum, the RO noted that it was conceding the stressor of the tornado as the Veteran was stationed in Ft. Sill at that time. At the time of a July 2019 examination, the examiner indicated that the Veteran did not meet the criteria for PTSD so causality as to whether the PTSD was related to the April 1979 Lawton tornado was not an issue. The examiner stated that the Veteran did not meet criterion D for PTSD making the appropriate diagnosis other specified trauma/stressor related disorder. At the time of a September 2019 VA examination, the Veteran was diagnosed with major depressive disorder. The examiner indicated that the Veteran stated that in 1979 he was in Lawton, OK when a tornado hit. He indicated that they were asked to help law enforcement recover the bodies. The Veteran reported that he saw one dead body that had been impaled by debris and saw the bottom half of a body that had been buried under the debris. The Veteran indicated that he did not have to remove the debris, clean up the site, or transport the bodies as local law enforcement took care of these duties. The examiner noted that the Veteran was being treated at VA for MDD and PTSD. However, the Veteran was claiming PTSD due to stressor of seeing two dead bodies after a tornado hit in Lawton, OK during his service in the Army. The Veteran noted that this was a one-time occurrence and indicated he saw the bodies, but did not participate in cleaning up the site, removing the bodies, or transporting them as local law enforcement performed those duties. Therefore, this stressor did not meet Criteria A for a diagnosis of PTSD. The examiner indicated that although the Veteran did endorse other symptoms of PTSD, the diagnosis could not be given per report of this stressor. The Veteran denied any other history of trauma that may constitute as a stressor, including denying any stressors related to service in Korea. The Veteran did endorse symptoms consistent with a diagnosis of MDD, including low energy, guilt, worthlessness, suicidal ideation, decreased appetite, low mood, frequent crying, sleep disturbance, anhedonia, and difficulty concentrating. Given the foregoing, the preponderance of the evidence is against the claim of service connection for PTSD as the examiners, following examination, have found that the Veteran does not meet the criteria for PTSD. However, the Veteran was diagnosed with other specified trauma disorder at the July 2019 examination and major depressive disorder at the September 2019 VA examination. The examiners both noted the Veteran’s tornado experience as the factor leading to the diagnosis, with the September 2019 VA examiner specifically indicating that the Veteran did endorse other symptoms of PTSD, but the diagnosis could not be given due to the stressor. (Continued on the next page)   Stressor verification is not a prerequisite for relating the Veteran’s current diagnoses of major depressive disorder and other specified trauma disorder to his period of service. Moreover, the Veteran was stationed at Ft. Sill at the time of the April 1979 tornado. He has submitted a newspaper article indicating that members from Ft. Sill were involved with assistance following the tornado. In addition, the Veteran’s military occupational specialty has been listed as a dump truck driver. Furthermore, the RO has conceded the stressor of the tornado. For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that an acquired psychiatric disorder, to include major depressive disorder and other specified trauma disorder, is related to service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.