Citation Nr: 21028009 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-41 287 DATE: May 10, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), to include major depressive disorder (MDD) is granted. Entitlement to service connection for an acquired psychiatric disorder to include PTSD is granted. FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran's MDD is etiologically related to his combat experience during active service. 2. Affording the Veteran with the benefit of the doubt, his PTSD is related to his combat experience. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include MDD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1968 to February 1970, including service in Vietnam. His decorations include a Combat Infantryman Badge and the Purple Heart Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Louis, Missouri. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in September 2020; a transcript of the hearing has been associated with the Veteran's claims file. In view of the facts found, and to provide broader consideration on appeal, the Board has recharacterized the Veteran's claim of entitlement to service connection for a mental health condition, to include chronic adjustment disorder and PTSD, to an acquired psychiatric disability, to include PTSD and MDD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, the Board is addressing the Veteran's PTSD and MDD as separate issues. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 C.F.R. § 3.303. Generally, service connection requires (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. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). There are specific requirements for establishing service connection for PTSD. 38 C.F.R. § 3.304(f); Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence of an in-service stressor; and (3) a link, established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). 1. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include MDD. The Veteran contends that his acquired psychiatric disability, other than PTSD, to include MDD, resulted from active service and therefore should be service connected. See August 2019 Board hearing transcript. After reviewing the evidence of record, the Board finds that service connection for MDD is warranted. The Veteran has a current diagnosis of MDD. See December 2019 private psychiatric evaluation. Therefore, the only question for the Board is whether the Veteran's MDD began during active service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran's service treatment records (STRs) include a September 1967 report of medical history (RMH) for induction that is negative for any reported psychiatric concerns. A December 1967 report of medical examination (RME) for induction noted the Veteran's psychiatric condition was normal. In a December 1969 RMH for separation, the Veteran affirmatively acknowledged having experienced nervous trouble during active service. A December 1969 RME for separation noted the Veteran's psychiatric condition was normal. A February 1970 Statement of Medical Condition noted the Veteran acknowledged no change in his medical condition since the December 1969 separation examination. Post-service treatment records include VA and private treatment records dated March 2011, December 2015, June 2016, January 2019, December 2019, and December 2020 that note positive depression screens. The Board observes that negative depression screens were noted in treatment records dated April 2011, October 2015, and May 2017. In addition, the Veteran denied depression in January 2011 and April 2013 treatment records. The claims file includes a March 2016 VA initial PTSD examination wherein the examiner confirmed a diagnosis of adjustment disorder and noted that the Veteran has no additional diagnosed mental disorders. The examiner opined that the Veteran's adjustment disorder is less likely than not caused by service. As a rationale, the examiner noted that while the Veteran's STRs and medical records indicate the Veteran meets the criteria for adjustment disorder, the examiner noted the Veteran's adjustment disorder is not related to service. The examiner observed the Veteran had more than adequate psychosocial and occupational functioning, recalls good times fondly, is emotionally close to his family, and most recently worked in sales for 15 years, a job which required a high degree of socialization. The examiner concluded it is not plausible that he was suffering from symptoms including nightmares, poor sleep, anger, and dislike of being around people. In support of this conclusion the examiner pointed out the Veteran married his second wife and seemed to be a very dedicated husband and father. His symptoms are more related to adjustment to retirement years and changes in family dynamic. Thus, it is clinically reasonable to conclude the Veteran's adjustment disorder is not related to the service. The claims file also includes a July 2018 VA initial PTSD examination wherein the examiner indicated that no mental health diagnoses could be confirmed. The examiner explained in the Remarks section of the report that the Veteran endorsed symptoms with atypical severity and pervasiveness; that are rarely seen in combinations; that are extremely rare in genuine psychiatric patients; and/or that are inconsistent with recognized psychiatric disorders. The examiner opined that the findings suggest the Veteran readily endorsed unusual symptoms in the context of this examination to a degree that exceeded the customary range of endorsements and thus does not provide empirical support for Veteran's self-report of symptoms. The Board also reviewed a March 2020 private psychological assessment report. The examiner noted that referral for the examination was for a diagnostic interview and psychological testing to assist the Veteran's center in diagnosis and treatment planning. The examiner confirmed that the Veteran is severely depressed. After a review of the Veteran's treatment records, assessments completed by the Veteran in conjunction with the examination, and an in-person interview, the examiner opined that the Veteran has combat-related MDD. As part of the rationale supporting the opinion, the examiner noted the Veteran's assessment responses indicate severe impairment in functioning with difficulty concentrating, prominent distress, and dysphoria; he is likely withdrawn and isolated, feeling estranged from those around him while displaying a great deal of distrust towards others. The examiner concluded by noting the Veteran's combat exposure left him extremely depressed with continuous suicidal ideation. As noted above, the Veteran testified at a September 2020 hearing that he has flashbacks of firefights and experiences feelings of guilt from his combat experience, including the death of fellow soldiers and causing the death of enemy soldiers. The Board also reviewed and considered other lay statements made by the Veteran in support of his claim. The Board notes that granting service connection for acquired psychiatric disorder, other than PTSD, does not require corroboration of the claimed stressor(s). The psychologist completing the March 2020 private assessment opined the Veteran's MDD is related to his combat experience. Therefore, considering the above noted evidence, the Board finds that service connection for an acquired psychiatric disorder, other than PTSD, to include MDD is warranted. Accordingly, based on these facts, the Board finds the preponderance of the evidence supports the Veteran's claim for service connection for an acquired psychiatric disability to include MDD. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for PTSD The Veteran contends that he has PTSD related to his combat service. See August 2016 Notice of Disagreement (NOD). As noted above, the Veteran's DD-214 shows receipt of the Combat Infantryman Badge and the Purple Heart Medal. Evidence in the claims file including the October 2016 nexus statement and the December 2019 private psychiatric evaluation establish a current diagnosis of PTSD. Thus, the question becomes whether the Veteran's PTSD is related to service. On this question there is evidence in favor of and against the claim. The Veteran's STRs include a December 1969 RMH for separation wherein the Veteran affirmatively acknowledged having experienced nervous trouble, but the STRs are otherwise negative for any complaints of or treatment for PTSD. Post-service treatment records include a December 2015 mental health diagnostic study note that recorded a PTSD checklist score of 83/85. A January 2016 VA psychiatric consult record noted a diagnosis of unspecified depressive disorder, rule out (r/o) PTSD, r/o Panic Disorder (without agoraphobia). A separate January 2016 treatment record noted the Veteran first met with a psychiatrist around 1976/77 and was afraid to have his symptoms documented out of concern that putting a diagnosis in his medical file would limit employment opportunities. A March 2016 VA social work record noted a diagnosis of PTSD per the DSM-5. An August 2016 VA mental health record included an etiology opinion from the Veteran's treating VA psychiatrist wherein he opined the Veteran's PTSD symptoms are more likely than not related to his active service in Vietnam. A February 2018 preventative medicine record noted a positive PTSD screen. A March 2021 psychiatry record notes the Veteran has been diagnosed with PTSD. In the March 2016 VA initial PTSD examination noted above, the examiner noted that the Veteran does not have a PTSD diagnosis that conforms to the DSM-5 criteria. In the attached medical opinion, the examiner opined that the Veteran does not have a diagnosis of PTSD that is at least as likely as not (50% or greater) caused by or incurred in service. As a rationale, the examiner noted that after a review the Veteran's STRs and medical records, it appears the Veteran did not meet the full diagnostic criteria for PTSD at this time. After a thorough review of the examination report, the Board notes the Veteran's reported stressor, killing people in combat, was noted to be inadequate to support the diagnosis of PTSD. The claim file also includes an October 2016 nexus statement prepared by the Veteran's VA psychiatrist. The VA treatment provider opined that the Veteran's PTSD is most likely caused by or a result of the Veteran's active service in Vietnam. As a rationale, the psychiatrist noted that the Veteran continues to experience nightmares of combat, including being shot at. The Board reviewed a July 2018 VA initial PTSD examination wherein the examiner indicated that the Veteran did not have a diagnosis of PTSD that conforms to the DSM-5 criteria. Again, no diagnosis was confirmed. The examiner noted the Veteran's reported mental health history included seeking mental health treatment in the mid-1970s after experiencing panic attacks, drug and alcohol treatment in the 1980s, a recommendation from primary care providers for counseling for during the past 10-15 years, treatment by a psychiatrist, and prescription medication. The examiner noted the Veteran produced an exaggerated response style. Further, the examiner noted the over-endorsement of symptoms does not mean that symptoms are absent, but that objective test evidence of over-endorsement of symptoms means that the presence and severity of current symptoms cannot be determined and that the Veteran's account of symptoms cannot be taken at face value. As such, no clinical opinion as to the presence or severity of any psychiatric disorder can be made at this time. In the attached July 2018 VA medical opinion, the examiner noted a review of conflicting medical evidence regarding a diagnosis of PTSD to include the March 2016 VA examination that concluded the Veteran does not meet the criteria for a PTSD diagnosis and the October 2016 nexus statement provided by the Veteran's treating VA psychologist that noted the Veteran has combat related PTSD. The examiner opined that there is no current PTSD diagnosis. Regarding the nexus statement, the examiner noted that there was no rationale for the nexus opinion. The Veteran reported that his VA treating psychologist knew he was not supposed to provide a nexus opinion but felt compelled to after the March 2016 VA examination. In addition, there are no records to review that suggest the nexus statement is based on anything other than the Veteran's own statements. Finally, the examiner noted that there is no indication of a PTSD diagnosis prior to 2016. The Board also considered the March 2020 private psychological assessment report as it also addressed the Veteran's PTSD. The psychologist noted that the results of a problem checklist completed by the Veteran indicated a T-score of 72/80, confirming a PTSD diagnosis. The private psychologist ultimately confirmed a diagnosis of combat related PTSD. As noted above, the Veteran testified at a September 2020 hearing wherein he repeated his belief that his PTSD is related to his combat experience. His military commendations confirm this combat experience. Based on a thorough review of the claims file, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran has PTSD that is related to combat experience during active service. The Board is mindful of the March 2016 and July 2018 VA initial PTSD examinations; however, these opinions only serve to place the medical evidence in a state of relative equipoise with the October 2016 Nexus Statement, March 2020 private psychological assessment and the VA treatment records noted above. Thus, resolving all doubt in the Veteran's favor, the Board finds that the record is in relative equipoise on all material elements of the claim for service connection of PTSD. Accordingly, based on these facts, the Board finds the preponderance of the evidence supports the Veteran's claim for service connection. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.