Citation Nr: 21029878 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-11 949 DATE: May 17, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depression, is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The preponderance of the evidence supports finding that the Veteran has an acquired psychiatric disorder, to include depression, that began during active service, or that is otherwise related to an in-service injury, event, or disease. 2. The Veteran, who had peacetime service, has a current diagnosis for PTSD; however, an in-service stressor sufficient to cause PTSD has not been verified. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include depression, have been met. 38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). 2. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1984 to December 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at an October 2018 hearing before the Board of Veterans' Appeals (Board). In March 2019, the Board remanded this claim for additional development. The Board finds that the RO substantially complied with its remand directives, and the Board may now proceed with adjudication. The Veteran asserts that his diagnosed PTSD arose during or as a result of his active service. See, e.g., December 2020 statement in support of his claim. As described in the March 2019 Board remand, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the Veteran's claims to include any psychiatric disorder. As emphasized in Clemons, though a Veteran may only seek service connection for PTSD, the Veteran's claim cannot be limited only to that diagnosis but must rather be considered a claim for any mental disability that may be reasonably encompassed. Accordingly, the Veteran's claim has been expanded to encompass any acquired psychiatric disorder. In view of the facts found, however, the Board will address PTSD separately from the broader claim for service connection for a psychiatric disorder. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred during service, or, if the injury or disease preexisted such service, a showing that the injury or disease was aggravated therein. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing that a purported injury or disease is connected to service, such that a veteran is entitled to potential benefits, requires competent and credible evidence of the following three things: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship, i.e. a nexus, between the disease or injury in service and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Regarding entitlement to service connection for PTSD, there are particular requirements for establishing service connection for PTSD which must be met independently of the general requirements for service connection. See 38 C.F.R. § 3.304(f); Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). See also 38 C.F.R. § 3.384. A Veteran's testimony, by itself, can establish the occurrence of an in-service stressor event if the requirements of 38 C.F.R. § 3.304(f)(3) are met. The revised 38 C.F.R. § 3.304(f)(3) reduces the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843 through 39852 (July 13, 2010). Effective on July 13, 2010, 38 C.F.R. § 3.304(f)(3) (stressor related to prisoner-of-war (POW) experience) and (f)(4) (stressor of in-service personal assault) were renumbered, respectively as (f)(4) and (f)(5), and a new (f)(3) was added which reduces the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843 through 39852 (July 13, 2010). The revised 38 C.F.R. § 3.304(f)(3) provides that if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). For purposes of 38 C.F.R. § 3.304(f)(3) "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness or horror. 75 Fed. Reg. 39843, 39852 (July 13, 2010). In substance, under the revised 38 C.F.R. § 3.304(f)(3), service connection can be granted for PTSD if the evidence demonstrates a current diagnosis of PTSD (rendered by an examiner specified by the regulation); an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) that has been medically related to the Veteran's fear of hostile military or terrorist activity by a VA psychiatrist or psychologist, or one contracted with by VA; and, PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or psychologist, or one contracted with by VA. As noted above, however, the Veteran only had peacetime service. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Laypersons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 Fed. Cir. 2007). 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 claimant. 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 Veteran 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). In this case, the Veteran's service treatment records (STRs) are negative for any complaints, treatment, or diagnosis of acquired psychiatric disorders. In an October 2014 statement in support of his claim for PTSD, the Veteran asserted that he witnessed the dead bodies of two fellow service members after an automobile-accident. See also, April 2015 statement in support of claim. VA treatment records reflect diagnoses for PTSD and major depressive disorder (MDD). See, e.g., March 2015, August 2015, and June 2019 VA treatment records. During his October 2018 Board hearing, the Veteran testified that, after psychiatric treatment for his conditions, he was able to remember the event more accurately and that the two bodies he saw were likely South Korean service members. In a March 2021 Appellate Brief, the Veteran's representative described the incident as follows. The incident involved four vehicles, with the first two holding Korean Marines. The Korean Marines were driving faster and went ahead of their U.S. counterparts. When the Veteran's vehicle came around a corner, he saw slide marks and that a jeep of Korean Marines had gone off the side. The jeep, which had a six-to-eight-foot antenna attacked had hit an electrical wire and was electrocuting the two soldiers inside the vehicle. The Veteran could hear screaming and went down to see if there was anything he could do. The vehicle was still electrically charged, forcing him to stand by helplessly while two Korean soldiers inside the vehicle burned to death. VA has been unable to verify the Veteran's reported in-service stressor incident. See January 2020 Timeline of USMC activity and January 2020 Correspondence. In March 2019, the Board remanded the Veteran's claim for PTSD so that VA could attempt to verify the Veteran's reported in-service stressor; however, after consulting with an archives technician associated with the Marine Corps Archives and Specials Collections division and review of a formal chronology of the 3D Force Service Support Group from January through June 1986, no documented evidence of the incident could be found. See November 2020 Supplemental Statement of the Case. While the Veteran lacks the medical training required to opine on whether any acquired psychiatric disorders were caused by service, the Board acknowledges that he is competent to report the stressor incident and his lay opinion that his psychiatric conditions began after this incident. The Board finds the Veteran credible, and his reports of the in-service incident have been largely consistent throughout his lay statements and Board testimony. That said, the stressor detailed by the Veteran does not fall under one of the categories outlined in 38 C.F.R. § 3.304(f) allowing for lay testimony alone to establish the occurrence of a stressor. "Fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others. 38 C.F.R. § 3.304(f)(3). The Board must therefore rely on the objective evidence available in the record, which does not provide any documented support for the Veteran's assertion that he witnessed two individuals' bodies or deaths after a recent automobile accident. In summary, while the Veteran has a current diagnosis of PTSD, the diagnosis is based on stressors that VA has been unable to verify. Therefore, service connection for PTSD must be denied. 38 C.F.R. § 3.304(f). Conversely, the Board finds the preponderance of the evidence is in favor of finding that the Veteran's depression arose as a result of his active service. The Veteran has current diagnoses for PTSD and MDD. The June 2020 VA examiner found it was at least as likely as not that the Veteran's PTSD was caused by active service and included depression and anxiety among the symptoms attributable to his PTSD. Finally, the Veteran's psychiatric treatment records and the June 2020 VA examination consistently focus on the Veteran's active service as the cause of his psychiatric problems. While the Veteran's in-service stressor for PTSD cannot be verified, claims for other psychiatric disorders do not have this requirement. No medical opinion or documented evidence suggests another cause for the Veteran's psychiatric conditions. Based on these facts, the Board finds the preponderance of the evidence is in favor of this claim. Accordingly, the claim for service connection for an acquired psychiatric disorder, to include depression, is granted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for service connection for PTSD, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.