Citation Nr: 21028029 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-38 107 DATE: May 10, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), to include persistent depressive disorder, and bipolar disorder, is granted. REMAND Entitlement to service connection for PTSD is remanded FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his acquired psychiatric disorder other than PTSD, including depressive disorder and bipolar disorder began during active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1990 to April 1990 and from July 1998 to October 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in January 2021. A transcript of the hearing has been associated with the Veteran's VA claims file. The Board notes that the Veteran filed his initial service connection claim for PTSD. However, the evidence of record shows the Veteran has also been diagnosed with, and treated for, persistent depressive disorder and bipolar disorder. According to the United States Court of Appeals for Veterans Claims (the Court), when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board will recharacterize the Veteran's PTSD claim pursuant to Clemons, as claims for entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include persistent depressive disorder, and bipolar disorder and entitlement to service connection for PTSD. Entitlement to service connection for an acquired psychiatric disorder Laws and Regulations Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. In that regard, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). Analysis The Veteran seeks entitlement to service connection for an acquired psychiatric disorder. Specifically, he contends he was verbally and mentally abused by his platoon sergeant during active duty service. See September 2015 VA 21-0781. The Veteran has been diagnosed with persistent depressive disorder and bipolar disorder. See December 2015 VA examination; November 2014 VA treatment record. Therefore, a current disability has been established. The Board notes that the Veteran's August 1997 enlistment examination noted no psychiatric abnormalities. There is no other evidence showing the Veteran had an acquired psychiatric disability prior to service. Thus, as the Veteran was noted to have normal psychiatric upon service entry, he is presumed sound. 38 U.S.C. § 1111. With respect to the second element, an in-service incurrence or aggravation of a disease or injury, the Veteran has consistently stated that he was constantly harassed and belittled by his platoon leader during active duty service. He pointed to a specific incident during training where he slipped and fell and was hanging on to the edge of a bridge. See July 2015 VA treatment note. He stated that his commanding officer walked by him and stated, "let him fall, he won't be missed." Id. The Veteran stated this incident caused him to stop caring and increased feelings of significant low self-worth. Id. The Veteran's service treatment records do not document any complaints, findings, or treatment for a depressive disorder. However, the Veteran is competent to report what occurred during service. In addition, as discussed in detail below, the Veteran's report of what occurred is corroborated by statements from his friends and family documenting a shift in his personality during service. An in-service injury has therefore been demonstrated. As the record contains evidence of a current disability, and evidence of an in-service injury, what remains to be established is whether there is a nexus between the diagnosed disability and his in-service disease. VA treatment records indicate that the Veteran has been receiving mental health treatment since as early as 2009. A December 2009 treatment reflects a diagnosis of depression. Since that time, the Veteran has been variously diagnosed with bipolar disorder, depressive disorder, PTSD, and childhood PTSD. He has consistently asserted his depression is due to verbal and emotional abuse during active duty service. The Veteran was admitted for depression and suicidal ideation from June 17, 2014 to June 20, 2014. Diagnoses included depressive disorder, bipolar disorder, generalized anxiety disorder and PTSD. He was hospitalized again from November 18, 2014 to November 28, 2014 following an attempted suicide. The record reflects diagnoses of bipolar disorder and PTSD. A November 2014 VA treatment note reflects the Veteran is chronically depressed and chronically suicidal. A July 2015 VA treatment record reflects the Veteran appears to experience high level of distress during interpersonal interactions when he feels he is being treated unfairly (secondary to fx and military trauma). In a separate July 2015 VA treatment note the VA clinician noted the Veteran's PTSD symptoms stem from childhood abuse and low feelings of worth due to emotional abuse during active duty military service. An August 2015 VA treatment note reflects the Veteran continues to experience high level of interpersonal distress secondary to social triggers that reinforce low self-worth. The December 2015 mental disorders (other than PTSD and eating disorders) disability benefits questionnaire (DBQ) noted a diagnosis of persistent depressive disorder (dysthymia). The Veteran reported his primary problem is depression. He has a history of two suicide attempts in 2014 which he asserts were triggered by his depression. The VA examiner opined the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness because the Veteran had previously reported being depressed dating back to childhood, noting that his report that he was never depressed until after his period of active duty was contradicted by information in the medical record. The VA examiner stated the Veteran attributed his depressive disorder to events (being bereted about his weight by his platoon sergeant) that are not corroborated by available military record or STR and would not be expected to cause a persistent intractable mental order. In a January 2016 letter from the Veteran's doctor, D.O., M.D., noted that he had diagnosed the Veteran with dysthymia, a type of persistent depression, and childhood PTSD. He stated the Veteran's childhood was rough and did impact him in terms of mood and interpersonal relations, among other things. However, he noted he agreed with the Veteran's assertion that his mood disorder stems in large part from his time in the military. He noted the Veteran's depression to be chronic and severe. During his January 2021 Board hearing, the Veteran testified that he was harassed and belittled by his platoon sergeant until he separated from service. He testified to being called "fatbody" until he left service. He testified that when most soldiers were allowed to change their socks on a road March, he could not. He testified that the platoon sergeant made him run through puddles just to keep his feet wet. He testified that this caused blisters, loss of toenails and blood running out of his boots. He stated that back then you could not say anything, you had to suck it up. He testified as to the incident during training, mentioned previously, where he slipped and fell on a bridge and his platoon sergeant said to let him fall, his family will never miss him. He asserted "that was the list time I seen myself." Following his Board hearing, the Veteran submitted several buddy statements. Specifically, in a February 2021 buddy statement, the Veteran's sister indicated that since returning from active duty her brother has changed and not for the better. She stated that he has become introverted and depressed all the time, and that one is on eggshells not knowing if he is going to have an outburst for expressing an opinion or action. In another February 2021 buddy statement, the Veteran's niece stated that since service his uncle has become withdrawn, depressed, introverted and very moody. He stated he is not his happy go lucky self. In another February 2021 buddy statement, the Veteran's friend who allowed the Veteran to live with him and his family briefly reflected on a conversation with the Veteran where they had differing viewpoints. He stated that the conversation escalated quickly to the point the Veteran was yelling and screaming and was having a difficult time getting control of his emotions. He stated it was hard to wrap his head around what had happened as it was a drastic mood swing and that it was atypical of the person he knew. In another February 2021 buddy statement, the Veteran's nephew stated that having been close with the Veteran throughout the different periods of his life, he can say that he is much different. He stated their once natural, easy-going relationship was now strained, pressured, and sometimes awkward due to his constant unstable mood. He stated that he worries his uncle will never be the same. Further in support of his claim, the Veteran submitted letters from his treating providers. D.O., M.D. indicated the Veteran has been a patient of his since March 2011. He noted the Veteran is irritable, has low self-esteem, chronic thoughts of suicide, is persistently depressed and has a sense of impending doom. Although D.O., M.D. provided no nexus opinion, his January 2016 letter indicated that the Veteran's mood stems in large part from his time in the military. The Board finds D.O., M.D.'s opinion, including the January 2016 letter, is probative because it is based on review of the Veteran's medical history and many years of treating the Veteran. The evidence of record raises a reasonable doubt as to whether the Veteran's acquired psychiatric disorder was incurred in or as a result of his active duty service. Therefore, the Board finds, as the Veteran entered service with no preexisting psychiatric disability, any reasonable doubt is resolved in his favor. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for an acquired psychiatric disorder is granted. REASONS FOR REMAND Entitlement to service connection PTSD is remanded. The Veteran contends that his PTSD is related to verbal and mental abuse during active duty. See September 2015 VA 21-0781. Generally, a veteran is presumed sound upon entry into service, except as to disorders noted at the time. 38 U.S.C. § 1111, 1132. This is known as the presumption of soundness. To rebut the presumption, VA must show by clear and unmistakable evidence that (1) the veteran's disability existed before his military service, and (2) that the pre-existing disability was not aggravated during service. Wagner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004). The clear-and-unmistakable evidence standard is an "onerous one." Horn v. Shinseki, 25 Vet. App. 231, 234-235 (2012). To qualify as "clear and unmistakable," evidence "cannot be misinterpreted and misunderstood, i.e., it [must be] undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999). In other words, the evidence is not clear and unmistakable if the conclusion is debatable. Id. The Veteran's post service PTSD has been related to pre-service trauma. For example, childhood PTSD was noted on a November 2014 VA treatment note. A VA clinician noted the Veteran appears to be experiencing PTSD symptoms stemming from childhood abuse. See July 2015 VA treatment note. A September 2015 VA psychiatry note states that the Veteran has a history of childhood PTSD. In the December 2015 mental orders DBQ, the Veteran reported being depressed dating back to childhood. In January 2016 D.O., M.D. provided a diagnosis of dysthymia and childhood PTSD. In February 2016 a VA psychiatrist diagnosed the Veteran with childhood PTSD. However, as noted previously the Veteran's August 1997 enlistment examination noted normal psychiatric and there is no other evidence showing the Veteran had PTSD prior to service. Therefore, an addendum opinion is required to determine if the Veteran has PTSD with delayed onset or if it existed prior to service and became aggravated by service. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Then, arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion as to: (a.) whether the Veteran's PTSD clearly and unmistakably existed prior to the Veteran's active duty service. A complete rationale for this opinion must be provided. (b.) If the examiner finds that the Veteran's PTSD clearly and unmistakably existed prior to service, state whether it is clear and unmistakable that the pre-existing disability was NOT aggravated (i.e., permanently worsened beyond the natural course of the disease) during service. A complete rationale for this opinion must be provided. (c.) If the Veteran's PTSD did not clearly and unmistakably exist prior to service, the examiner must provide an opinion addressing whether it is at least as likely as not (50 percent probability or not) that the Veteran's PTSD had its clinical onset during service or are due to an event or incident of the Veteran's period of active service. 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Aston, 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.