Citation Nr: 21025558 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-33 552 DATE: April 28, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is granted. FINDING OF FACT The Veteran’s currently diagnosed depressive disorder is causally related to active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.30, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1963 to December 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Sioux Falls, South Dakota, Regional Office (RO) of the United States Department of Veterans Affairs. The Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge in November 2019. A transcript of the hearing is associated with the claims file. In a December 2019 decision, the Board reopened the Veteran’s previously denied claims for entitlement to service connection for an acquired psychiatric disorder, and hearing loss and denied service connection for an acquired psychiatric disorder, hearing loss and tinnitus. The Veteran appealed the issue of entitlement to service connection for an acquired psychiatric disorder to the United States Court of Appeals for Veterans Claims (Court). In November 2020, based on a Joint Motion for Partial Remand (JMPR), the Court found that in denying service connection for an acquired psychiatric disorder, the Board failed to provide an adequate statement of reasons and bases regarding the statements of the Veteran’s wife and sister-in-law regarding their interactions with the Veteran after his time in Vietnam. The Court vacated that portion of the Board’s December 2019 decision denying service connection for an acquired psychiatric disorder and remanded for readjudication. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also 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). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; 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, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran’s service treatment records are negative for treatment for and/or a diagnosis of any type of psychiatric or psychological symptoms or disorder while the Veteran was in service. The Veteran’s service personnel records show he served in the Republic of Vietnam from August to December 1965. The Veteran’s post-service medical treatment records are negative for treatment and/or for a diagnosis of PTSD or depression. The Veteran underwent a VA mental disorders examination in August 1994. He reported that he had not been in outpatient treatment for any emotional, substance abuse or neurological problems. He stated that he had a stroke 18 years earlier and indicated a family history of strokes. The Veteran indicated he was scared while serving in Vietnam. He admitted to having difficulty sleeping and that he took a sleeping pill at night. The examiner noted that the Veteran had difficulty in communicating and expressing himself verbally. The Veteran made it clear that this is a major problem for him which leaves him frustrated and irritable. He was accompanied by a friend who stated that the Veteran had approximately 6 strokes in the past 18 years. The examiner diagnosed the Veteran with organic brain disorder associated with cerebral vascular accident, organic depression associated with cerebral vascular accident. The examiner determined that PTSD was not present, according to the DSM criteria, however given the Veteran’s “cerebral impairment that affects memory and speech this examiner is of the opinion that it cannot be said with certainty that he does not experience post traumatic stress disorder.” In January 1997, the Veteran’s wife, NMS, submitted a statement in support of the Veteran’s claim. NMS stated that she met the Veteran in 1993 and married him in 1995. She stated that the Veteran has shared with her some of his experiences in Vietnam. The Veteran told her that on his first day in the field his unit was unloading weapons when they fell into the water, leaving them with only sticks to defend themselves in the jungles of Vietnam. The Veteran also reported that old ladies would walk up to U.S. soldiers, pretend to beg, and throw hand grenades. The Veteran told NMS that “the Turkish military (allies) would cut off the heads of the enemy and hang them up for display.” NMS further stated that she had witnessed the Veteran get so upset that he would shake uncontrollably and “could not utter a sound.” In May 2014, the Veteran’s children, MS and DS, submitted statements describing instances when their father had flashbacks and dreams that triggered irrational behavior, including threatening their mother and barricading himself in the house. The Veteran’s sister-in-law, OS, also submitted a statement in support of the Veteran’s claim in January 1997. OS stated that she has known the Veteran since 1955 and that she was married to the Veteran’s brother. OS stated that after the Veteran’s discharge from service, he lived with her and her husband. She stated she noticed a tremendous change in the Veteran upon his return from Vietnam. He was not the friendly, pleasant, caring, happy-go-lucky young man she once knew. She also stated that she was afraid to be alone with him because he would sit and stare into space. When he was awoken from sleep, he would “wake up throwing punches.” OS stated that the Veteran appeared to be in a state of confusion and depression when he came home from Vietnam. The Veteran underwent a VA mental health examination July 2014. The examiner determined the Veteran met the criteria for a diagnosis of depressive disorder. determined that the Veteran did not meet the criteria for a diagnosis of PTSD under the DSM-V criteria. The Veteran reported no history of mental health care prior to entering service. He described an occasional memory of being in the Army in Vietnam. Subjective complaints included being depressed, increasingly in the last ten years due to his stroke and associated physical limitations and impact on speech and walking functions. He has become increasingly depressed over the last 10 years due to his strokes and physical limitations. The examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD but did meet the criteria for a diagnosis of depressive disorder due to physical and mental problems such as his strokes, rather than with military service. The Veteran appears to have testified at his hearing that he was feeling depressed when he came out of the service in 1965 because of experiences he had in Vietnam, that these feelings continued up to the time of his first stroke and continuing to date. Unfortunately, due to his strokes, his testimony was confused and unclear in many areas. After a thorough review of the evidence of record, the Board finds that service connection for an acquired psychiatric disability to include PTSD and depressive disorder is not warranted. The Veteran has not been diagnosed with PTSD. His medical records do not show treatment for PTSD and neither the August 1994 nor the July 2014 VA examiner found that the Veteran met the criteria for a diagnosis of PTSD. The evidence of record does not support the claim for service connection for PTSD. The Veteran has not met the criteria for a diagnosis of PTSD at any time during the appeal period. While the Veteran and his family members believe he has a current diagnosis of PTSD, neither the Veteran nor his wife or sister-in-law are competent to provide a diagnosis. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board finds that the criteria for service connection of a depressive disorder are met. Though one VA examiner rendered a negative nexus opinion in July 2014, he did not consider the competent and credible lay evidence of a long-term history of psychiatric symptoms. He instead noted only the lack of clinical treatment, and relied on the Veteran’s clearly confused reports. As was noted regarding the hearing, even though the Veteran put forth a good effort to communicate, he was severely impaired by his strokes. The earlier, 1994 VA examiner provided an equivocal opinion, stating he felt a connection was not warranted, but the Veteran’s communication problems made certainty impossible. Therefore, the only undisputed and consistent evidence of record are the lay statements of the Veteran and his family members, reporting the onset of symptoms immediately after Vietnam, and continuing since that time. Further, the 2014 VA examiner did not eliminate the possibility of a psychiatric condition prior to the occurrence of strokes. He instead reported increasing symptoms over the past 30 years, and in particular the last 10. While current symptoms could, consistent with the medical opinion, be attributable in large part to strokes and their residuals, the evidence indicates there was pre-existing pathology. As no evidence of record distinguishes the two causes or degree of contribution, all doubt is resolved in favor of the Veteran. Service connection for an acquired psychiatric disability, to include PTSD and depressive disorder is warranted. The preponderance of the probative evidence of record supports the claim of service connection. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Margaret M. Lunger 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.