Citation Nr: 21024139 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-12 863 DATE: April 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) and major depressive disorder is granted. REMANDED Entitlement to service connection for erectile dysfunction to include secondary service connection to service connected acquired psychiatric disorder is remanded. Entitlement to service connection for hypertension, also claimed as high blood pressure, to include secondary service connection to service connected acquired psychiatric disorder is remanded. Entitlement to service connection for gastrointestinal condition to include secondary service connection to service connected acquired psychiatric disorder is remanded. FINDING OF FACT The preponderance of the evidence weighs in favor of a finding that the Veteran has PTSD and major depressive disorder that are related to an in-service personal assault. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder 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 with the United States Marine Corps from August 1972 to September 1974. This case was previously before the Board in November 2018. At that time, the issues of service connection for a back disability, acquired psychiatric disorder, hypertension, gastrointestinal disorder, erectile dysfunction were remanded for further development. Subsequently, in a December 2020 rating decision, the RO granted service connection for a back disability; thus, that issue is no longer for appellate consideration. For the remaining issues, the Veteran’s appeal has been returned to the Board for further appellate consideration. The Board’s November 2018 remand directives and the subsequent actions of the AOJ will be discussed below. Entitlement to service connection for an acquired psychiatric disorder to include PTSD and major depressive disorder is granted. The Veteran contends his acquired psychiatric disorders are related to his active duty in the United States Marine Corps. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, service connection for PTSD requires (1) medical evidence establishing a diagnosis of the disorder, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link established by medical evidence between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). The diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the American Psychiatric Association’s DSM. 38 C.F.R. § 3.304(f). Based on the evidence of record, and resolving all doubt in favor of the Veteran, the Board determines that service connection is warranted for the Veteran’s psychiatric disorders. Regarding the first element of service connection, the Veteran has diagnoses of chronic PTSD and moderate major depressive disorder with anxious distress. See April 2019 VA examination. Thereby, the first element of service connection has been satisfied. Turning to the occurrence of an in-service stressor, the Veteran reported witnessing assaults while in service as well as experiencing physical assaults in service. Here, evidence from sources other than the Veteran’s service records may corroborate his account of the stressor incident if the PTSD claim is based on in-service personal assault 38 C.F.R. § 3.304(f)(5). Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. The Veteran in this case reported that he witnessed and experienced instances of assault or life-threatening situations. First, the Veteran noted that a drill instructor had knocked his glasses off his face and then ordered him not to wear them for the rest of his stay after verbally attacking him. The Veteran reported that he felt shocked and terrified knowing this kind of behavior was allowed but also that it could happen again. Additionally, the Veteran reported another incident which he felt was life threating that he observed in service. The Veteran noted that while at basic training they informed the recruits that another recruit had killed himself by jumping off some part of the building. Later, the Veteran was told that the other recruit had been pushed off the roof by a drill instructor. This incident made the Veteran feel he was in danger or survival mode. Further, the Veteran witnessed on several occasions other recruits being assaulted by other recruits or drill instructors. Specifically, the Veteran witnessed another recruit fall during an exercise, and he was dragged and stomped on repeatedly by an entire unit of trainees. Moreover, the Veteran witnessed a recruit being beaten in his bunk, another beaten by drill instructors in a closet, and another recruit go into spasms after being held in water by a drill instructor. See May 2015 Correspondence. The Board notes that these stressful events have not been verified. However, the Board finds the Veteran’s statements to be credible and supported by the totality of the evidence of record. Following these incidents, the Veteran received several infractions for being absent without leave. See October 2014 Military Personnel Record pp. 14, 15. Following these infractions, the Veteran appeared before the Special Court in November 1973 for being absent without leave which ultimately led to his discharge. The Special Court noted on several occasions the Veteran was absent from his unit and remained absent for several days at a time. See October 2014 Military Personnel Record p. 2. Most compelling, however, is evidence that after his infractions of unexcused absences, the Veteran had a psychiatric consultation. That report noted the Veteran was depressed to some degree and if he remained in the Marine Corps, he would no doubt go AWOL again. The examiner recommended the Veteran be provided with appellate leave noting that further military duty would be detrimental to the Veteran and the Marine Corps. See October 2014 Service Treatment Record pp. 4, 5. Affording the Veteran the benefit of the doubt, the Board finds that the record shows evidence of multiple infractions for absences, Special Court verdict, and psychiatric consolation are sufficient to corroborate the Veteran’s claimed stressors. 38 C.F.R. § 3.304(f)(5). His testimony is also found to be competent and credible regarding the claimed in-service event. Miller v. Wilkie, 32 Vet. App. 249 (2020). Therefore, the second element of service connection has been satisfied. Lastly, the evidence demonstrates a nexus between the Veteran’s current disability and his in-service stressor. The Veteran was afforded a VA examination in April 2019. The examiner initially noted the Veteran’s acquired psychiatric disorders subsumed under the diagnoses of PTSD and major depressive disorder. She then concluded that both conditions were at least as likely as not incurred in or caused by the claimed in-service stressors. She reasoned the Veteran’s treatment records showed numerous admissions to LVAMC in the late 70’s and early 90’s and approximately ten alcohol treatment programs and mental health treatment for symptoms of PTSD and depression due to time in service. She found the Veteran’s statements were consistent and accurate and all the stressors support the diagnoses. See April 2019 VA examination. As there is no opinion to the contrary, the Board finds that the evidence regarding a link between the Veteran’s acquired psychiatric disorders and the in-service stressor is at least in equipoise. Accordingly, the Board finds that the third element of service connection for acquired psychiatric disorders, diagnosed as PTSD and major depressive disorder, is established, and therefore, service connection is warranted. REASONS FOR REMAND Service connection for erectile dysfunction to include secondary service connection to service connected acquired psychiatric disorder is remanded. Service connection for hypertension, also claimed as high blood pressure, to include secondary service connection to service connected acquired psychiatric disorder is remanded. Entitlement to service connection for gastrointestinal condition to include secondary service connection to service connected acquired psychiatric disorder is remanded. The Board previously remanded these matters in November 2018 for additional development finding that the Veteran’s claims for erectile dysfunction, hypertension, and a gastrointestinal condition were inextricably intertwined with his claim for an acquired psychiatric disorder because he contended that these disabilities were caused or aggravated by his psychiatric condition. Further, the Board noted that if the Veteran’s claim for service connection for an acquired psychiatric disorder was awarded than medical opinions for these conditions should be obtained. See November 2018 Board Decision. Service-connection for an acquired psychiatric disorder is granted herein. Therefore, remand is required for an examination to assess the possibility of secondary service connection for hypertension, erectile dysfunction, and gastrointestinal condition. Moreover, in the Board’s November 2018 remand, the Agency of Original Jurisdiction (AOJ) was instructed to attempt to obtain the Veteran’s outstanding Vet Center records. In this regard, the Board notes that Vet Center records are stored separately from VA treatment records and must be requested with an authorization signed by the Veteran. In January 2019 and again in April 2020, the AOJ requested the Veteran identify the dates of his Vet Center treatment and provide an authorization; however, neither the Veteran nor his attorney responded directly to this request. The Board notes that VA’s duty to assist is not a one-way street; if the Veteran wishes help, he cannot passively wait for it in circumstances where his own actions are essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Given that the Veteran is claiming service connection for hypertension, erectile dysfunction, and a gastrointestinal disorder all as secondary to his now service-connected psychiatric disorders, these records may lend support to his claims. Accordingly, on remand the Veteran must be provided with another opportunity to identify these records and allow VA to attempt to obtain them. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide an authorization to allow the AOJ to attempt to obtain any identified Vet Center records. If he returns an authorization that is incomplete or invalid, he must be notified of such and given an opportunity to return a complete/valid authorization. Thereafter, the AOJ must attempt to obtain these records in accordance with VA regulation. 2. Following completion of step 1, schedule an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). The claims file should be made available to the clinician for review. Following review of the record, the clinician should respond to the following: (a.) Is it at least as likely as not (a 50 percent probability or higher) that the Veteran’s erectile dysfunction was either (1) caused by or (2) aggravated by his service-connected acquired psychiatric disorder? Why or why not? (b.) Is it at least as likely as not (a 50 percent probability or higher) that the Veteran’s hypertension was either (1) caused by or (2) aggravated by his service-connected acquired psychiatric disorder? Why or why not? (c.) Is it at least as likely as not (a 50 percent probability or higher) that the Veteran’s gastrointestinal condition was either (1) caused by or (2) aggravated by his service-connected acquired psychiatric disorder? Why or why not? Separate opinions as it pertains to causation and aggravation for each disability is required. (CONTINUED ON NEXT PAGE) A complete medical rationale for all opinions expressed must be provided, to include discussing the specific facts of this Veteran’s case. If an opinion cannot be provided without resorting to speculation, the examiner should provide complete explanations of why this is so. In so doing, the examiner is requested to explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or the limits of current medical knowledge have been exhausted in providing an answer to that particular question. J. O’CONNELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Emily A. Kotroco 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.