Citation Nr: 21029870 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 19-31 526 DATE: May 17, 2021 ORDER Service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD), based upon the substitution of the Appellant as the claimant, is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's posttraumatic stress disorder (PTSD) is related to his active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1967 to March 1969. He passed away in June 2020 and the Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for anxiety and posttraumatic stress disorder. The Appellant testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2021. A copy of the transcript has been reviewed and associated with the claims file. Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD), based upon the substitution of the Appellant as the claimant Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 449 (1995). Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with applicable criteria; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); Anglin v. West, 11 Vet. App. 361, 367 (1998). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). 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 to the claimant. In the present case, the Veteran served in Vietnam and received the Combat Infantryman Badge. Thus, the Board finds that the Veteran engaged in combat and his in-service stressor is conceded. See 38 C.F.R. § 3.304(f)(2). The Appellant testified at the hearing in April 2021 and indicated that the Veteran discussed killing soldiers and seeing parts of dead bodies while in Vietnam. After he was discharged from service and returned from Vietnam, he suffered from panic attacks, nightmares, and flashbacks. The Appellant submitted a statement from R.C. in March 2021, who was employed as a deputy sheriff 40 years prior to that date and recalled receiving a call about a disturbance inside of a restaurant. When he responded to the disturbance, he witnessed the Veteran being restrained by a friend because he was suffering a flashback related to his experiences in Vietnam. The Veteran's treatment records dated in December 2017 indicate that he was suffering from vivid and distressing visual hallucinations related to his experiences in Vietnam. During a January 2018 neuropsychological consultation, the Appellant reported that the Veteran suffered from frequent nightmares for many years and avoided talking about his service in Vietnam except on rare occasions when he was distressed after drinking alcohol. The examiner indicated that his combat-related content of his hallucinations may be related to underlying PTSD. He was ultimately diagnosed with dementia. The Veteran's private treating healthcare provider noted in October 2018 that his combat related hallucinations were not seen in other patients with dementia. The Veteran underwent a VA examination in May 2018, at which time the examiner concluded that his symptoms did not meet the diagnostic criteria for PTSD under DSM-V mainly because he was cognitively impaired and could not provide the details required to make a diagnosis of PTSD. He assessed the Veteran with major neurocognitive disorder, Lewy Body Disease, per records. A medical opinion by R.M., Ph.D., a licensed clinical psychologist, was submitted in February 2019. Dr. R.M. ultimately assessed the Veteran with PTSD pursuant to DSM-5. Dr. R.M. noted that although he exhibited signs of dementia in 2016, he had symptoms of PTSD prior to the onset of dementia, including distressing memories, nightmares, dissociation, psychological and physiological reactivity, avoidance, hypervigilance, anger and irritability, and sleep disturbances. Although his wife met him after service, the Veteran expressed that he was tired of killing after he returned from Vietnam, did not want to own a gun, afraid of airplanes, and would only discuss military after drinking alcohol. Accordingly, Dr. R.M. concluded that he met the clinical criteria for a lifetime and current diagnosis of PTSD that was as likely as not related to his military service, which had become more severe with the onset of his dementia. A VA medical opinion was issued in October 2019, at which time the examiner agreed with the May 2018 opinion indicating that he did not have a diagnosis of PTSD. After a review of the evidence, the Board finds that the Veteran had a diagnosis of PTSD prior to his passing, which was related to his conceded combat service in Vietnam. In this regard, Dr. R.M., a licensed clinical psychologist, reviewed the record and interviewed the Appellant and concluded that he had a lifetime and current diagnosis of PTSD in February 2019, which was exacerbated by his dementia diagnosis. Dr. R.M. reasoned that his PTSD symptoms predated his diagnosis of dementia. Lastly, Dr. R.M. concluded that his PTSD was related to his military service given his reported long history of psychological distress following his military service, which became more severe with the onset of his dementia. The Board acknowledges the negative opinions provided by the May 2018 and October 2019 examiners. However, the Board gives little weight to these opinions. In this regard, the examiners discounted the Appellant's statements indicating the Veteran's PTSD symptoms prior to his dementia diagnosis. Moreover, R.C. confirmed that his flashbacks of Vietnam commenced as early as the 1980s. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran had a diagnosis of PTSD prior to his passing that was related to his conceded combat service in Vietnam. In view of the foregoing, and in consideration of the credible medical and lay evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's acquired psychiatric disability, including PTSD, was incurred during his active service. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. (Hurley) Merrick 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.