Citation Nr: 21025337 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-51 999 DATE: April 27, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran’s currently diagnosed PTSD is related to an in service psychological stressor that occurred while the Veteran was stationed aboard a submarine. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.326, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from January 1967 to November 1968. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which, in pertinent part, denied service connection for PTSD. The instant matter was previously before the Board in December 2018, where the issue on appeal was remanded for additional development. As the instant decision grants service connection for PTSD, which is a complete grant as to the only issue on appeal, the Board need not further address remand compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at an April 2021 Central Office Board hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for PTSD, which is a complete grant as to the only issue on appeal, no further discussion of VA’s duties to notify and assist is necessary. Service Connection for PTSD Service Connection Law and Regulations 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(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). As such, 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 to the PTSD issue on appeal. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. If a veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to “fear of hostile military or terrorist activity,” then the veteran’s testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Furthermore, service department records must support, and not contradict, the claimant’s testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals, and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service Connection for PTSD At the outset, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran is currently diagnosed with PTSD. Per a November 2016 private opinion letter from C.P. and J.S., the private examiners explained that the Veteran was currently displaying symptoms that had their basis in previously diagnosed PTSD. There is substantial evidence showing other diagnosed disorders than PTSD, including that the symptoms thought to be PTSD were attributable to other diagnosed psychiatric disorders. While it is unclear from the letter whether the Veteran’s previous PTSD diagnosis was made pursuant to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), the Board has applied the “presumption of regularity” to find that the PTSD diagnosis was made in accordance with 38 C.F.R. § 4.125(a). See Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) (presumption of regularity allows courts to presume that what appears regular is regular). As there is evidence for and against finding a current diagnosis of PTSD, the Board resolves reasonable doubt in favor of the Veteran to find a current diagnosis of PTSD. Next, the Board finds that during service the Veteran underwent a psychological stressor that occurred while stationed aboard a submarine. In its December 2018 Remand, the Board explicitly found that VA had previously recognized that the Veteran experienced one or more in-service stressors. Per the Board Remand, a November 1977 hospitalization treatment note reflected that the Veteran had a psychotic break in service aboard the USS Tiru. At that time, clinical notes showed that the Veteran’s doctors had contacted a member of the Naval Investigative Service, who confirmed that the Veteran was subjected to extreme stress in service, the precise nature of which could not be disclosed for national security reasons. Based upon the above, the only remaining question before the Board is whether there is a link between the currently diagnosed PTSD and the in-service stressor. Having reviewed all the evidence of record, lay and medical, the Board finds the evidence is at least in relative equipoise on the question of whether the currently diagnosed PTSD is related to the verified in-service stressor. Throughout the course of this appeal, in February 2013, July 2016, and November 2016, VA received private opinion letters from C.P. and J.S., which opined that the evidence of record supported that the Veteran was showing symptoms of PTSD at the time of service separation. Further, per the November 2016 private opinion letter, C.P. and J.S. opined that the current PTSD symptoms are a continuation of the PTSD symptoms that manifested during service following the in service submarine related psychological stressor. In sum, the evidence shows that the Veteran has a current diagnosis of PTSD, an in service stressor sufficient to support a diagnosis of PTSD, and the evidence of record is at least in equipoise on the question of whether the Veteran’s PTSD symptoms are related to the in-service submarine stressor. Two private examiners, C.P. and J.S., have opined that the Veteran was manifesting symptoms of PTSD at the time of service separation, and at least some of those symptoms have continued to the present. As such, resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for PTSD have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Rating PTSD Finally, the Board will address how the newly service-connected PTSD will be rated. The Veteran has been service connected for bipolar II disorder, previously service-connected as schizophrenia, schizo affective type, since October 1977, and has received a 100 percent total disability rating, the maximum schedular rating, since service connection was granted. As this 100 percent rating has been in effect for over 20 years, it is a protected rating that cannot be reduced. 38 C.F.R. § 3.951(b) The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one General Rating Formula for Mental Disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. Per the General Rating Formula for Mental Disorders, disability ratings of 0, 10, 30, 50, 70, or 100 percent are assigned based upon all a veteran’s service-connected mental health symptomatology and social and occupational impairment, whether the veteran is service connected for one, or many, mental health disorders. Specifically, for a 100 percent rating, a veteran is assigned a disability rating based upon the total level of social and occupational impairment caused by all the service connected mental health symptoms, regardless of their source. The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM5. See 38 C.F.R. § 4.126. If the evidence demonstrates that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are “like or similar to” those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Based upon the above, as the Board has granted service connection for PTSD, upon the instant matter returning to the Agency of Original Jurisdiction (AOJ), the Veteran’s rating code-sheet will be amended to reflect that the Veteran is now service connected for PTSD and bipolar II disorder, previously service-connected as schizophrenia, schizo affective type. The AOJ will then rate all the Veteran’s mental health symptoms, whether they stem from the PTSD or the bipolar/schizophrenia disabilities, and continue the protected 100 percent disability rating. As the Veteran is already in receipt of a 100 percent total disability rating for the service-connected mental health disabilities, the Board’s grant of service connection for PTSD will not result in any higher benefit to the Veteran, as no higher benefit is available under the rating schedule. As the 100 percent total disability rating for the service-connected bipolar II disorder, previously service-connected as schizophrenia, schizo affective type, has been in effect continuously for over 20 years, it is a protected rating that cannot be reduced in the absence of fraud. 38 C.F.R. § 3.951(b). Additionally, as the Veteran has only ever been service connected for a mental health disorder, which, for the reasons discussed above, will now be stylized as service connection for PTSD and bipolar II disorder, previously service-connected as schizophrenia, schizo affective type, the Board’s grant of service connection for PTSD will not result in entitlement to special monthly compensation (SMC), including benefits at the schedular housebound rate. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(1). In sum, in the instant decision the Board has granted service connection for PTSD, which is a complete grant as to the issue on appeal. In accordance with VA law and regulation, the PTSD will be rated alongside the previously service-connected bipolar II disorder, previously service connected as schizophrenia, schizo affective type, and assigned a rating under the General Rating Formula for Mental Disorders. As the Veteran has been in receipt of a 100 percent total disability rating, the maximum schedular rating under the General Rating Formula for Mental Disorders, for more than 20 years, and as the Veteran is not service connected for any other disabilities, as a result of this Board decision, there is no possible increase or decrease in the current level of benefits the Veteran receives. In other words, there is no appealable action that the Board has taken in the instant decision that could result in any higher benefits to the Veteran under the law as it is currently in effect. Finally, during the course of this appeal the Veteran has argued that, upon service connection for PTSD being granted, the PTSD should not be rated alongside the currently service-connected bipolar II disorder, previously service-connected as schizophrenia, schizo affective type. Rather, the Veteran argues that the Board should find that the bipolar disorder and schizophrenia were misdiagnosed, and that the Veteran has only had PTSD since service connection was granted, effective October 1977. For the reasons discussed below, the Board finds the evidence to be overwhelmingly against a finding that the Veteran has only ever had the mental health disability of PTSD. Hospital records from August 1977 indicate that the Veteran was treated for bipolar affective disorder, manic depressive illness. Per an October 1977 private treatment letter, the Veteran was seeking treatment for schizo-affective type schizophrenia. A November 1977 treatment record also shows that the Veteran was diagnosed with schizo-affective type schizophrenia. The Veteran received a VA examination in October 1978. Per the VA examination report, at the conclusion of the examination the diagnosis was schizophrenia, schizo-affective type. Upon the Veteran receiving a new mental health examination from VA in October 1979, the VA examiner concurred that the diagnosis of schizophrenia, schizo-affective type, should be retained. Following in-patient treatment from September 1980 though October 1980, the Veteran was again diagnosed with a schizo-affective disorder. Upon the Veteran receiving a new VA mental health examination in April 1981, the diagnosis of schizo-affective type schizophrenia was continued. VA treatment records reflect that in March and April 2010 the Veteran received in patient psychological treatment. Per a March 30, 2010 VA treatment record, the VA physicians were trying to rule out schizo-affective disorder and had a current working diagnosis of bipolar mania. Nonetheless, the VA treatment records convey that the Veteran remained diagnosed with schizo-affective disorder at the time of discharge in mid-April 2010. In April 2014, the Veteran was referred to a VA psychologist for a psychological assessment in an attempt to rule out paranoid schizophrenia. Upon reviewing the Veteran’s mental health history, the VA psychologist noted that the Veteran had maintained several consistent diagnoses, including unspecified schizophrenia, schizo-affective disorder, bipolar type, and paranoid schizophrenia. After extensive testing, at the conclusion of the examination the VA psychologist opined that the Veteran’s symptoms were most consistent with paranoid schizophrenia. Per the report from a July 2014 VA mental health examination, the Veteran was diagnosed with bipolar II disorder. The examination report was unclear as to whether the Veteran remained diagnosed with schizophrenia, as the VA examiner stated that “the diagnosis is changed and it is a new and separate diagnosis.” Subsequently, in April 2018, the Veteran sought an opinion from a VA facility that the proper mental health diagnosis was PTSD, and not schizophrenia or bipolar disorder. After examination of the Veteran, the VA psychologist felt unable to make any change in diagnosis based upon the past reports from other mental health providers at VA who had observed the Veteran’s psychotic behaviors. Finally, the Veteran received a new VA mental health examination in October 2019. Upon examining the Veteran and reviewing the evidence of record, the VA examiner diagnosed bipolar II disorder. (Continued on the next page)   The Board notes that the Veteran’s private treatment providers, C.P. and J.S., have expressed disagreement with the prior diagnoses of schizophrenia and bipolar disorder; however, even C.P. and J.S. have not opined that the Veteran is solely diagnosed with the mental health disability of PTSD. Rather, in previous opinion letters, both private treatment providers have also diagnosed an adjustment disorder. In sum, the overwhelming weight of the medical evidence of record shows that the Veteran is not solely diagnosed with the mental health disability of PTSD. Rather, throughout the relevant rating period on appeal, the Veteran has had diagnoses of PTSD, bipolar disorder, and various forms of schizophrenia; therefore, the Board finds it most appropriate that, upon the instant matter being returned to the AOJ, the AOJ should amend the rating code-sheet to refect that the Veteran is now service connected for PTSD and bipolar II disorder (previously service-connected as schizophrenia, schizo affective type). Again, such a finding has no effect on the Veteran’s past, current, or future service-connected mental health disability rating or compensation. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.