Citation Nr: 21029430 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-26 066 DATE: May 13, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, defined as posttraumatic stress disorder (PTSD) and major depressive disorder, is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, he has a current diagnosis of PTSD and a major depressive disorder that is related to his active duty. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability, characterized as PTSD and a major depressive disorder, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1971 to January 1979. This current matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded this appeal for additional development, to include obtaining any outstanding VA and private treatment records and a VA examination that addresses the etiology of the Veteran's acquired psychiatric disorder. Additional VA treatment records were associated with the claims file in September 2019, October 2019, January 2020, and June 2020; a private opinion was obtained in November 2020; and a VA examination was obtained in November 2019. The Board finds that there has been substantial compliance with the October 2018 Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In consideration of this holding, and in light of multiple acquired psychiatric diagnoses reflected in the evidence of record, the Board has expanded and recharacterized the claim as reflected on the title page. Service Connection Acquired Psychiatric Disability, To Include PTSD Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for chronic disabilities if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection for PTSD specifically requires: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptoms and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The presence of a chronic disability at any time during the claim process can justify a grant of service connection, even if the disability has since resolved or where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. In the current appeal, the Veteran asserts that his acquired psychiatric disorder is related to his service. The medical evidence of record includes diagnoses of PTSD and a major depressive disorder, as noted on a November 2019 VA examination and a private September 2016 Disability Benefits Questionnaire (DBQ) respectively. A combination of these disorders was indicated on an addendum opinion dated November 2020 from the September 2016 DBQ examiner. These diagnoses satisfy the first element of service connection. The Veteran asserts that his acquired psychiatric disorder symptoms began in service and have continued to the present. He reported struggling with his military service and disliking authority figures and reported going AWOL (absent without leave) multiple times because he did not want to be in service. He reported that he developed feelings of anxiety and depression during service that have not gone away. He also reported an incident during service in Vietnam where he saw a friend of his die and has recurrent nightmares and flashbacks related to his service. See, e.g., August 1981 Private Treatment Record and December 2018 VA Treatment Record. His DD 214 reflects an early separation under an authorized program or circumstances, and his military personnel records reflect multiple instances of unauthorized absences during the year 1972. A June 2020 VA Memorandum found that the Veteran served in the bays or harbors of Vietnam and in the "blue water" off the shores of Vietnam. His statements regarding his service appear to be consistent with the circumstances, conditions, and hardships of his service. As such, he has satisfied the second element of service connection. The last element of service connection requires medical evidence establishing a linkage between the claimed in-service stressor and the current symptoms of the diagnosed PTSD and major depressive disorder. The September 2016 DBQ examiner indicated a diagnosis of major depressive disorder with psychotic features. The examiner concluded that the Veteran's claim file documented his mental health decline after service, as reflected by his DD 214 and treatment records in the years following his separation. The examiner reviewed statements from the Veteran's mother and sister who reported that, prior to his service, the Veteran was family-oriented, responsible, and kind but that, in service, he became angry, unhappy, and moody and returned from service a completely different person who struggled to maintain relationships with his family. The examiner diagnosed the Veteran with a major depressive disorder that more likely than not began during his military service and continued uninterrupted to the present. Following the October 2018 Board remand, the Veteran was accorded a VA examination in November 2019. The VA examiner diagnosed PTSD with symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and suicidal ideation. The examiner noted that the Veteran's service on a ship near Vietnam supported a diagnosis of PTSD and also noted that his reported childhood physical abuse was sufficient to support such a diagnosis. The examiner remarked that the Veteran believes his symptoms started as a child but were aggravated by his service. The Veteran reported suicidal thoughts just about every single day and noted that these thoughts began in the 1970s and have continued to the present. The examiner opined that it was at least as likely as not that the Veteran's PTSD was related to his active duty. The examiner explained that it was unknown whether the Veteran had PTSD prior to joining the military but that his military service resulted in trauma that he aims to avoid talking, or thinking, about. The examiner ultimately indicated that the Veteran's PTSD was attributable to his military experience during the Vietnam era, given his current symptoms and attempts to avoid speaking about his service experiences even at the examination. An addendum opinion was provided in November 2020 by the September 2016 DBQ examiner. After reviewing the VA examination and opinion and the additional statements from the Veteran, the examiner diagnosed the Veteran with PTSD and major depressive disorder including psychotic features and opined that this disorder began during military service and has continued to the present. The examiner indicated that, while they do not disagree that the Veteran may have experienced traumatic events during childhood, it would be speculative and contrary to medical evidence to find that the Veteran had PTSD when he entered the service, as there was no medical evidence prior to service indicating any diagnosable mental disorder. The Veteran was not diagnosed with any psychiatric disability as a childhood, and the examiner noted that the claims file shows the Veteran was clear of any mental health condition or defect upon entry to service. The examiner stated that the record documents the Veteran's struggles during his military service and that those experiences support his PTSD diagnosis. The Veteran's acquired psychiatric disorder, diagnosed as PTSD with a major depressive disorder, have been positively linked to his military service, as both the VA and private examiner provided positive nexus opinions. As such, the Veteran has satisfied the third element of service connection. While the Veteran reported some experiences with childhood abuse prior to entering the service and the November 2019 VA examiner at one point indicated that the Veteran's PTSD was attributable both to his military service and his childhood abuse, no psychiatric disability was noted at entrance. The Veteran's January 1981 entrance examination found no psychiatric disability or defect present. Veterans are presumed to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. Id. Where a condition is not noted on entry, the presumption of soundness may be rebutted only if the examiner determines that (1) the condition clearly and unmistakably preexisted the Veteran's service, and (2) it clearly and unmistakably was not aggravated by service. The November 2020 opinion found that there was no clear evidence or indication that the Veteran had PTSD prior to his service. Even the November 2019 VA examiner noted that it was unknown if the Veteran had PTSD before he joined the military. The other medical evidence of record reflects some reports of childhood abuse in his private and VA treatment records, but such was not consistently indicated. The Board finds that the presumption of soundness has not been rebutted, as the VA examiner stated it was unknown whether the Veteran had PTSD prior to joining the military and such does not amount to clear and unmistakable evidence that the condition preexisted his service. The Board finds that the evidence of record is in relative equipoise. In resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for PTSD with a major depressive disorder is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.