Citation Nr: 21028980 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-37 780 DATE: May 12, 2021 ORDER Service connection for the Veteran's mental health disability, as currently diagnosed, is granted. FINDING OF FACT The weight of the evidence supports a finding that the Veteran's mental health disability, as currently and variously diagnosed, is at least as likely as not related to traumatic experiences in service, to include fear of hostile military or terrorist activity. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, as currently diagnosed, are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1996 to August 1996, October 2004 to December 2005, April 2009 to May 2010, and August 2011 to June 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision. The Veteran testified at a Board hearing in November 2018. The Board remanded this matter in June 2019 and August 2020. *** The Veteran seeks service connection for a mental health disability. 12/02/2014, Fully Developed Claim. Private treatment records show diagnoses of anxiety and depression. 06/11/2015, Medical Treatment Record-Non-Government Facility. The Veteran has also asserted that he has undiagnosed PTSD. A June 2015 private treatment note indicates the Veteran's mental health symptoms became significantly worse after his last deployment in Southwest Asia. Id. at 6 & 8. At the November 2018 Board hearing, the Veteran indicated that it was his wife who first noticed signs of a mental health condition. Shortly thereafter, the Veteran submitted a statement from his wife. 11/20/2018, Buddy/Lay Statement. In it, the Veteran's wife indicated that she first noticed changes in the Veteran following his second deployment to Southwest Asia. She recalled that the Veteran had flashbacks, night sweats, anxiety, and stress, as well as communication and memory issues. Thereafter, the Veteran was deployed to Southwest Asia for a third time. The Veteran's wife indicated that the Veteran's mental health symptoms became worse after his third and last deployment. The Veteran underwent a VA examination in November 2019. The examination report shows a diagnosis of unspecified depressive disorder. As to whether this diagnosis is related to service, the examiner opined that it is less likely than not. The mental health examiner's rationale was there was no evidence of mental health symptoms during service or nor a consistent report of ongoing symptoms since his last deployment. The examiner further noted that the Veteran had only recently begun psychiatric treatment. She also indicated that there was "no consistency in [the Veteran's] depression between Veteran's last deployment in 2012." In April 2020, the RO requested an addendum to the 2019 VA opinion, one that would address the Veteran's documented diagnosis of anxiety disorder. A different mental health examiner opined it is less likely than not that any acquired psychiatric disorder (including anxiety and depression) is related to service. As discussed in the August 2020 Board remand, the November 2019 and April 2020 VA opinions are inadequate. As such, the Board remanded for a new VA examination, to include consideration of whether the Veteran has PTSD. The Veteran's DD-214s indicate that the Veteran served in both Southwest Asia and a designated imminent danger pay area. VA treatment records obtained since the Board's June 2019 remand include an August 2019 VA psychiatry note that shows a diagnosis of "[s]everal mild symptoms of PTSD endorsed by [a VA clinical nurse specialist] in 2014." Additionally, a November 2014 VA psychiatry note does show a diagnosis of anxiety disorder with mild features of PTSD. 03/02/2015, CAPRI, at 18. The August 2019 VA note also shows diagnoses of anxiety, depression, adjustment disorder driven by the Veteran's current marital situation, and a history of alcohol abuse. 11/05/2019, CAPRI, at 14. Following the August 2020 Board remand, the Veteran, in September 2020, submitted a statement regarding his stressors in service. 09/25/2020, VA 21-0781, Statement in Support of Claim for PTSD. He stated that, during his first deployment to Iraq in 2005, there were several incidents that cause extreme stress. He recalled an event where his platoon went to investigate a report that civilian contractors had engage a vehicle that got too close to the convoy. The Veteran explained that this action had resulted in the shooting of a husband and wife and a third man, with only the wife surviving. The Veteran explained that he has felt guilty for these deaths because the civilian contractors were on the tail truck of the convoy, a position normally held by the Veteran's platoon. The Veteran believes that if his platoon had been in tail truck position, these deaths would not have occurred. He further recounted that later in that same deployment, his team was replaced at the last minute to conduct a convoy and assigned a different mission. Upon his return to base, he learned that the tail vehicle in the referenced convoy had been hit by a projectile and a soldier had lost his foot. The Veteran felt that he could have been the one injured and that left him under constant fear for his life. He added that this feeling increased when his unit lost three members. Finally, he recounted that in August 2005 his unit was mortared every day for a week, to include a mortar that hit his unit's bunker and destroyed it. He stated that he was 40 feet away, adding that he continues to struggle with these traumatic events. In January 2021, the Veteran underwent a VA examination. Regarding the nature of the Veteran's mental health disability, the examiner concluded that the Veteran has a diagnosis of unspecified depressive disorder but does not meet the DSM-5 diagnostic criteria for PTSD. Regarding the question of whether the Veteran has PTSD, the examiner determined that at least one of the reported stressors is both adequate to support a diagnosis of PTSD and is related to the Veteran's fear of hostile military or terrorist activity. In the examiner's estimation, this was the only criterion for a diagnosis of PTSD that was met by the Veteran. Regarding the diagnosed depression, the examiner opined that this diagnosis is less likely than not related to service. The examiner's rationale was that there is no significant indication that the Veteran's current symptoms relate to an event in service. The examiner notes that there were inconsistencies between the histories offered by the Veteran and his spouse. The examiner further noted that the Veteran's depression, to include symptoms reported by Veteran's spouse, most likely developed in response to marital problems and other life stressors, rather than an in-service event. The Board appreciates the opinion of the January 2021 VA examiner but finds that the probative value of the opinion is outweighed by other evidence of record. Significantly, the Board finds that the statements from the Veteran and his spouse provide compelling evidence that the Veteran exhibited changes in his mental health following his two deployments to Southwest Asia. Furthermore, the Veteran has reported a series of in-service of stressors, at least one of which is adequate to support a diagnosis of PTSD. Finally, regarding the question of whether the Veteran has a diagnosis of PTSD, the Board notes that a November 2014 VA treatment note shows a diagnosis (based on the DSM-5) of anxiety disorder with mild features of PTSD, along with a diagnosis of unspecified depressive disorder. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (stating that mental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis). Based on this evidence, the Board finds that his current mental health disability, to include depression and PTSD, is at least as likely as not related to in-service trauma, to include fear of hostile military or terrorist activity. As such, with resolution of doubt in favor of the Veteran, the Board finds that service connection for his current mental health disability is warranted. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.