Citation Nr: 21024368 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-00 986 DATE: April 22, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his PTSD is at least as likely as not related to his military service. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1970 to January 1972. This case was previously remanded for additional development in June 2018 and October 2020. Service Connection 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. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are three requirements to establish service connection: (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 serice. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), where the veteran asserts entitlement to service connection for a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Although all of the evidence must be reviewed, only the most salient evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Persuasive or unpersuasive evidence must be identified, however, and reasons must be provided for rejecting favorable evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Wilson v. Derwinski, 2 Vet. App. 614 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay or non-medical evidence may be discounted in light of its inherent characteristics and relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence, the claimant must be afforded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 1. Entitlement to service connection for PTSD. To establish service connection for PTSD the evidence must satisfy three basic elements. There must be 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Veteran’s DD Form 214 confirms he had service in the Republic of Vietnam (Vietnam). Based on the procedural history of this case, to include statements made in the prior June 2018 and October 2020 Board remands, there is a sufficient basis in the record to establish that the Veteran experienced an in-stressor event related to his service in Vietnam and to find that the combat presumptions of 38 U.S.C. § 1154(b) should apply in this case. Thus, the only question for consideration in this case is whether the Veteran has a diagnosis of PTSD due to his service in Vietnam. The record shows that two separate private psychologists diagnosed the Veteran with PTSD. See Private DBQ received February 2021 and VA Examination received February 2021. The Veteran’s service treatment records (STRs) contain no complaints, symptoms or diagnoses related to a psychiatric condition. See STR Medical. In October 1984, the Veteran underwent a VA examination to evaluate his psychiatric symptoms. During the examination, the Veteran reported experiencing extreme difficulties from a “nervous condition.” Specifically, the Veteran indicated that he suffered from anxiety, restlessness, nervous breakdowns, nightmares, and flashbacks from his experiences in service. The Veteran reported that these symptoms created a lot of confusion, lack of stability in his daily and social life, and an inability to hold a job. Furthermore, he indicated feeling very depressed and that he “totally failed” in his marriage as a result. The examiner diagnosed the Veteran with anxiety and chronic depressive reactions. See October 1984 VA Examination. Notably, however, the Veteran was denied service connection in January 1985 on the grounds that his nervous condition was not incurred in or aggravated by service. See January 1985 Rating Decision. In August 2018, the Veteran underwent a private psychiatric evaluation to determine the nature and severity of his mental disorders. The examiner opined that the Veteran met the full Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5) criteria for a diagnosis of PTSD with delayed expression. Notably, the examiner opined that the Veteran suffered from excessive guilt related to his military service and its effects on the lives of other people, periods of wandering and walking long miles without a specific purpose other than getting away from people and life in general, profound anhedonia with initiation and behavioral activation difficulties, self-destructive behavior, including self-medication with alcohol, and memory difficulties for dates of past events. Furthermore, the examiner noted that the Veteran refrained from soliciting VA services during and after the military due to a fear of consequences/ stigmatization. Ultimately, the examiner opined that the Veteran’s PTSD was more likely than not related to the Veteran’s military service. The examiner explained that the Veteran’s symptom manifestations began after exposure to various stressors during military service, and therefore are likely to be temporally and etiologically related to those traumatic events. Furthermore, the examiner noted that the Veteran did not have a history of mental health conditions prior to military service. See Private Examination received February 2021. In September 2018, the Veteran underwent a second private psychiatric examination to evaluate the nature and severity of his mental disorders. The examiner, noted that, while serving in Vietnam, the Veteran saved the life of a soldier who was in flames and exposed his life to danger. Additionally, the Veteran expressed that during his time in the military, he experienced considerable emotional and physical stress. Due to his experience in the military, the examiner opined that the Veteran had had difficulty functioning at an adequate level in his life. Specifically, the examiner held that all areas of the Veteran’s life had been impacted due to his psychological symptoms. In particular, the Veteran reported that since service he had suffered hyper arousal including symptoms of disturbing or unwanted memories, nightmares, feeling or acting as if the stressful experience were actually happening, and strong physical reaction when something reminded him of a stressful experience. He also reported suffering severe insomnia along with frequent terrifying nightmares of military content, crying spells for no reason, panic attacks, frequent episodes of loss of temper that was causing marital conflicts, decreased libido, intolerance of sudden loud noises and crowds of people, tachycardia, difficulty breathing, a sensation of tightness in the chest, and decreased concentration capacity. The Veteran expressed negative beliefs about himself and others, and negative feelings such as fear, horror, anger, guilt or shame and paranoia. Furthermore, the examiner noted that the Veteran had experienced depression-like features after serving in the military, along with PTSD and anxiety symptoms. The examiner employed the PTSD checklist for the DSM-5 and opined that the Veteran’s symptomatology correlated positively with PTSD. Specifically, the examiner held that the Veteran was experiencing severe posttraumatic stress, anxiety and depression that had never been treated and diagnosed. Furthermore, she opined that the condition was more likely than not a consequence of the Veteran’s service-connected duties. See DBQ received February 2021. The Board acknowledges the July 2013 and August 2020 VA examinations, which found that the Veteran’s symptomatology did not meet the criteria for PTSD, and that the Veteran’s current psychiatric symptoms are less likely than not related to his active duty military service. However, these opinions were previously found to be inadequate as they did not address the Veteran’s lay statements alleging that he had suffered from psychological symptoms since service. See June 2018 and October 2020 BVA Decisions. The Veteran underwent another VA examination in December 2020. Notably, the examiner indicated that in the October 1984 VA examination, the Veteran reported suffering from nerves since his time in service. Despite this finding, the examiner noted that the record contained no evidence of psychiatric complaints before or during the Veteran’s time in service. Additionally, the examiner indicated that the Veteran did not seek psychiatric care after service until February 2012. The examiner noted that mental disorders are characterized by clinically significant disturbances in an individual’s cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. He continued, stating that mental disorders are usually associated with significant distress or disability in social, occupational, or other important activities. Ultimately, the examiner opined that the Veteran’s current psychiatric symptoms were not related to his military service. Specifically the examiner stated that, “again, Veteran sought psychiatric care in 2012, therefore we can conclude that previously reported neuropsychiatric symptoms as per documented on VA exam dated in 1984, resolved.” Thus, it appears that the examiner, at least in part, based his conclusion on the premise that the Veteran did not experience psychiatric symptoms between 1984 and February 2012. See December 2020 VA Examination. In correspondence received in April 2014, the Veteran penned a letter disagreeing with the January 2014 rating decision, which, in pertinent part, denied the Veteran’s claim for service connection for PTSD. In his disagreement, Veteran indicated that after leaving Vietnam in 1972, he “asked for help” but at the time, he claimed, Vietnam veterans were not treated well because the “war was lost.” The Veteran also indicated that his early experiences with treatment were not good, so he decided never to go back to the VA hospital. In 1985, the Veteran sought treatment, but again felt that he was mistreated, so he once more vowed to never go back. It was not until “a few years ago” that a friend found the Veteran homeless and sleeping on the streets that the Veteran decided to seek treatment. See Correspondence received April 2014. Based on the foregoing, the Board finds that service-connection for PTSD is warranted. Both the August 2018 and September 2018 private psychiatric evaluations found that the Veteran had a diagnosis of PTSD that was more likely than not due to his active duty military service. The Board finds the August 2018 and September 2018 private examinations to be highly probative on the matter of whether the Veteran has a diagnosis of PTSD, and whether his PTSD is related to his military service. Both opinions were well-reasoned and rendered by trained psychologists who reviewed the Veteran’s VA medical records and considered the Veteran’s competent and credible statements pertaining to his psychiatric symptomatology. The Board also notes that while the December 2020 VA examination ultimately found that the Veteran did not have a diagnosis of PTSD, and that the Veteran’s psychiatric conditions were not related to his military service, the examiner’s opinion appears to be largely premised on the grounds that the record contains no complaints or treatments related to a psychiatric disorder between 1984 and 2012. In this regard, the Board finds that the April 2014 correspondence, wherein the Veteran explained his displeasure with his early VA treatment to be credible and thus adequately explains the absence of treatment records. Additionally, the Veteran’s VA treatment record reveals that the Veteran has consistently reported experiencing nightmares and flashbacks related to his war experiences. See VA Treatment Record received August 2020. The examiner made no mention of the Veteran’s reports pertaining to nightmares. Thus, the Board finds the December 2020 examiner’s opinion to be conclusory and based upon insufficient facts. For this reason, the Board finds the December 2020 VA examiner’s opinion to be insufficient for rating purposes and not to have probative value. Nieves-Rodriguez, 22 Vet. App. 295, 301 (2008) (the probative value of a medical opinion is determined by whether the examiner was informed of sufficient facts upon which to base an opinion and whether the report contains data, conclusions, and a complete rationale in support thereof). (Continued on the next page) In conclusion, the Board finds that the evidence is at least in equipoise as to whether the elements for establishing service connection for PTSD are met. See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for PTSD is granted. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talton, John H. 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.