Citation Nr: 21025437 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-12 162A DATE: April 28, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and major depressive disorder, is granted. FINDING OF FACT It is at least as likely as not that the Veteran’s acquired psychiatric disorder, to include PTSD and major depressive disorder, is related to his active military service. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to May 1975. The Veteran testified before the undersigned Veterans Law Judge during a December 2017 videoconference hearing; a transcript is of record. The Board of Veterans’ Appeals (Board) previously remanded the issue for further development in July 2018 and June 2020. The case has now been returned to the Board for appellate review. To afford the Veteran the broadest possible scope for his claim for PTSD, the issue has been recharacterized accordingly to that of entitlement to service connection for an acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1,6 (2009). Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and major depressive disorder Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran asserts that his current psychiatric disorder began while in service. His service treatment records (STRs) indicate that he was separated from service honorably due to disciplinary actions. The Veteran testified during his December 2017 hearing that his psychiatric symptoms began while serving in Korea. He described the symptoms as depressive episodes that caused him to stay in bed, neglect his hygiene, and miss duties, which led to his discharge. He stated that he did not seek psychiatric treatment during service but was referred to psychiatric counseling as part of his discharge. The Board notes that the Veteran indicated frequent trouble sleeping and marked “don’t know” in response to nervous trouble of any sort during his April 1975 separation examination. Post-service treatment records indicate extensive mental health treatment including multiple hospitalizations for a variety of psychiatric disorders including bipolar disorder, depression, and PTSD. The Veteran also submitted a lay statement from his sister dated November 2017. She stated that the Veteran displayed no psychiatric symptoms prior to entering service. When he returned, she observed the Veteran’s behaviors change dramatically. She stated that he stayed in his room for long periods of time and would not associate with people and refused to seek mental health treatment. She also noted that he began to abuse alcohol. The Board remanded the issue in July 2018 to obtain outstanding medical records and to afford the Veteran a psychiatric examination to verify the current psychiatric diagnosis and obtain an opinion as to whether it is at least as likely as not had its onset in service. In response, the VA examiner confirmed the diagnosis of major depressive disorder in an August 2019 opinion. He also opined that the Veteran’s diagnosis of major depressive disorder is unrelated to his military service experience and further complicated by prolonged exposure to substance use and illicit drug use. He stated that the Veteran’s cited disciplinary problems do not constitute early symptoms on any psychiatric disorder later demonstrated. He reasoned that the “assumption that reported disciplinary problems may constitute early symptoms of any psychiatric disorder seem to be negated by the Report of Mental Status Evaluation dated April 24, 1975 that disclaims any indications of mental disorder.” In the June 2020 remand, the Board found that the August 2019 opinion was inadequate for rating purposes as it was not supported by adequate reasons and bases. The Veteran submitted an August 2020 examination report from a private psychologist who reviewed the Veteran’s claims file and performed a telehealth evaluation in May 2020. The clinician diagnosed the Veteran with PTSD, major depressive disorder, and panic disorder based on DSM-5 criteria. He noted the Veteran’s ongoing nightmares and intrusive thoughts of traumatic events that occurred while serving in the military and substance abuse that began during military service that has since resolved. He noted that he found the Veteran’s reports of serving in the DMZ to be credible as his STRs indicate that he served in the 2nd infantry division and the Veteran described his experiences in great detail. Based on his review of the record and evaluation of the Veteran, the examiner opined that it is at least as likely as not that the Veteran’s PTSD is due to his active military service, specifically fear of hostile military terrorist activity that he experienced while stationed at the DMZ in Korea as a radar operator. The examiner also opined that the Veteran currently suffers from major depression and panic disorder that are secondary to his PTSD. Pursuant to the Board remand, an addendum opinion was obtained in September 2020. The examiner stated that the Veteran’s dominant mental health diagnosis is major depression and opined that the Veteran’s current psychiatric disorder is less likely than not related to his active military service. As rationale, the examiner noted that there is no evidence of mental health problems in the Veteran’s STRs and the Veteran had chronic substance abuse issues that the examiner found were more likely to have caused the Veteran’s major depression. An addendum opinion was requested, and in October 2020 the examiner clarified that she believed that the behavioral issues in service are at least as likely as not due to personality issues that are not measured as a mental health disorder. She concluded that she was unable to diagnose his behaviors any further “as this would require speculation due to the lack of formal mental health data from so many years ago.” The Board acknowledges the complexity of the Veteran’s variously diagnosed psychiatric disorders and the September 2020 opinion and October 2020 addendum opinion that the Veteran’s current psychiatric disorders are not related to his military service. However, the Board finds the August 2020 private opinion finding that the Veteran’s psychiatric disorders including PTSD, major depression, and panic disorder are related to his military service to be competent and probative. The private examiner reviewed the Veteran’s service records and contemporary medical records and conducted a thorough mental status examination in forming his medical opinion. He supported his diagnoses and opinions with adequate rationale based on this evidence and his medical expertise. Therefore, the Board finds that the evidence presently before the Board is sufficient to grant the appeal. The Veteran has been diagnosed with PTSD, major depression, and panic disorder and the Board finds the Veteran's statements about in-service events to be credible credible. The August 2020 private psychologist indicated that his various acquired psychiatric disorders are related to in-service events. Any reasonable doubt in the evidence must be resolved in favor of the Veteran, and thus, entitlement to service connection for an acquired psychiatric disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, 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.