Citation Nr: 21030537 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-32 085 DATE: May 19, 2021 ORDER Entitlement to service connection for a psychiatric disorder, to include both posttraumatic stress disorder (PTSD) and major depressive disorder is granted. FINDING OF FACT The Veteran's psychiatric disorder, to include PTSD and major depressive disorder, is related to his active service and the stressful events he experienced therein. CONCLUSION OF LAW The criteria of service connection for a psychiatric disorder, to include PTSD and major depressive disorder, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from June 1969 to June 1989. For his meritorious service, the Veteran was awarded (among other decorations) the Bronze Star Medal, the Meritorious Service Medal, the Army Commendation Medal, and the Vietnam Service and Campaign Medals. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially filed a claim for entitlement to service connection for PTSD in October 2015 and was denied in a January 2016 rating decision. In June 2016, the Veteran sought to reopen his PTSD claim and submitted a private opinion. In the subsequent August 2016 rating decision on appeal, the Veteran's denial for PTSD was reopened and the denial confirmed and continued. Subsequently, the Veteran filed his notice of disagreement in September 2016. As the Veteran submitted additional evidence following the January 2016 rating decision within one year of that rating decision, the Board finds the January 2016 rating decision did not become final, and new and material evidence is not required before the Board may consider the claim on a de novo basis. In April 2018, the Veteran called in and stated he wanted to withdraw his appeal seeking service connection for PTSD. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 19.55 (2019). Withdrawal of an appeal is only effective where the withdrawal is "explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011)). The Board does not wish to disregard the Veteran's stated intent, but given the law summarized above, the Veteran's phone call to withdraw his claim is insufficient to warrant a dismissal. In June 2019, the RO sent correspondence to the Veteran stating the phone call was received to request withdrawal of the appeal, but informed the Veteran the withdrawal must be in writing; the RO provided a form for the Veteran to submit his withdrawal in writing. To date, a written withdrawal has not been received. Under the criteria of 38 C.F.R. § 19.55, the withdrawal of service connection for PTSD have not been met. Additionally, the Veteran requested a hearing in his substantive appeal (VA Form 9). His hearing before a Veterans Law Judge was scheduled for February 18, 2020. The Veteran did not appear for this scheduled hearing and he has not provided good cause for why he missed his hearing, nor has he requested it be rescheduled. Thus, the Board finds the Veteran's request for a hearing with respect to the service-connection issues has been withdrawn. The Board notes that the Veteran initially filed a service connection claim for PTSD. As in Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the Court's decision in Clemons, the Board has re-characterized the issue on appeal as entitlement to service connection for a psychiatric disability, to include PTSD and major depressive disorder. This will provide the most potentially favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. 1. Entitlement to service connection for a psychiatric disorder, to include both posttraumatic stress disorder (PTSD) and major depressive disorder is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent, credible evidence of (1) a current disability; (2) 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). All elements for service connection are met for the Veteran. Establishing service connection for a PTSD claim requires three elements: (1) medical evidence diagnosing the condition with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between Veteran's present 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). If, however, the claimant engaged in combat with the enemy, and his claimed stressor is related to that combat, then verification of the stressor is not required. Id. at § 3.304(f)(2). Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence, and medical evidence, in a case is to be considered by the Board in deciding the claim. The competence, credibility, and probative weight of evidence must be assessed. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's private treatment records reflect a diagnosis of PTSD, obsessive compulsive disorder, tic disorder, and major depressive disorder. While the VA examinations conclude the Veteran does not have a psychiatric disability, the private treatment records clearly provide multiple psychiatric disability diagnoses. The first element of establishing service connection for a psychiatric disability is met. The Veteran submitted statement in support of claim for service connection for PTSD. He provided the approximate location of the incident in the Republic of Vietnam and reported that in December 1970 he was involved in an incident where a blast killed two service members from his platoon in the line of duty. The Veteran reported another stressor in January 1971 wherein an explosion occurred, and he assisted in recovering the soldier's remains. The Veteran also provided private opinions from his treating psychologist and a disability benefits questionnaire (DBQ). The Veteran's private psychologist, Dr. J.K.B., provided a private opinion in September 2015. Dr. J.K.B. stated the Veteran was initially seen for his OCD obsessions, which the Veteran reported began in his late teens. Dr. J.K.B. stated his initial sessions with the Veteran were to deal with his OCD and to gain skills in dealing with his impulsiveness and compulsions. Later, the Veteran reported symptoms the Veteran felt related to his two tours in Vietnam. The Veteran reported nightmares, anxiousness, and difficulties around loud, unexpected noises. Dr. J.K.B. provided an addendum private opinion in June 2016. Dr. J.K.B. stated the Veteran reported his nightmares began after his in-service reported stressors. The Veteran reported startle responses to the back firing of cars and loud noises. Dr. J.K.B. reported the Veteran is sensitive to smells and he avoids war movies. Dr. J.K.B. reported that based on the Veteran's presentation and self-report, the Veteran has recurrent and involuntary and intrusive distressing memories regarding the two reported stressors in-service. He reported the Veteran has mild dissociative reactions, nightmares related to the incidents in-service, and startled reactions to loud noises. Dr. J.K.B. also stated the Veteran has avoidance behaviors associated with the memories and external stimuli, diminished interest and participation in significant activities, feelings of detachment from others, and hypervigilance. Dr. J.K.B. stated the Veteran's symptoms are chronic with varying severity and are related to the in-service stressors reported by the Veteran. In June 2017, the Veteran submitted a private DBQ. The private physician noted the Veteran's current diagnoses include PTSD and recurrent depressive disorder. The private physician reported the Veteran is socially withdrawn, isolates himself, has intrusive thoughts, and loss of interest in events. The private physician noted the Veteran has been treated for depression over the years. The private opinion characterized the Veteran's occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The private opinion reported the Veteran's symptoms include depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of mood and motivation, and obsessional rituals which interfere with routine activities. The private physician noted he reviewed the Veteran's stressor incident reports and letters from Dr. J. B. K. The Veteran underwent a VA examination in December 2015 and an addendum opinion was obtained in October 2016. The December 2015 VA opinion noted the Veteran did not have a diagnosis of PTSD or a mental disorder that conforms to DSM-5 criteria. The VA examiner noted the Veteran received psychotherapy for 5 years from a private physician, but the VA examiner concluded he could not identify sufficient psychiatric symptoms of any DSM-5 disorder. The VA examiner discussed the Veteran's reported stressor and concluded it is adequate to support a diagnosis of PTSD and is related to the Veteran's fear of hostile military or terrorist activity. The VA examiner noted the Veteran said he is not having nightmares anymore but can have flashbacks if he comes upon a wreck. He stated the Veteran also has startle responses and dreams about soldiers under his command who were killed. The VA examiner stated the Veteran reported his nightmares resolved within a few years of combat. The VA examiner noted the Veteran did not show signs of stress upon recalling his combat experiences and did not describe avoidant behavior. The VA examiner concluded the Veteran did not meet the DSM-5 criteria for PTSD. The VA obtained an addendum opinion in October 2016. The VA examiner concluded the Veteran does not have a diagnosis of PTSD that is at least as likely as not incurred in or caused by stressful events in-service. The VA examiner concluded the Veteran has no mental disorders. The VA examiner stated he reviewed the Veteran's VA treatment records from 2006 to 2010 wherein the Veteran was diagnosed with chronic PTSD, generalized anxiety disorder, and major depressive disorder. The VA examiner noted one of the last entries stated the Veteran was doing okay and his medication was working well and that he was no longer two other medications. The VA examiner stated this indicated some of the Veteran's psychiatric symptoms were remitting by that date. The VA examiner cited to other VA treatment records where the Veteran provided pictures of himself and other soldiers in Vietnam and then explained his stressor incidents. The VA examiner concluded there are no symptoms reported that rise to the level of clinical psychopathology and no treatment is indicated at this time. The Veteran's VA treatment records reflect treatment from 2006 to 2010. He was diagnosed with a generalized anxiety disorder, chronic PTSD, and recurrent major depression. In 2015, his VA treatment records document chronic PTSD as stable and note treatment by private provider. A mental health note from September 2016 reported the Veteran's symptoms and the Veteran provided a statement from his private provider, Dr. J.K.B. The Veteran reported exaggerated startle responses to loud noises, being emotional when seeing combat movies or television shows. He also reported smells result in unpleasant memories or images and reported nightmares about once a year. The VA psychologist reported no diagnosis and stated no symptoms rise to the level of clinical psychopathology. The RO denied the Veteran's claim stating the Veteran does not have a diagnosis of PTSD and concluded they considered the private records, but put more weight on the VA opinion. The Veteran's stressors were not researched, as the RO concluded the Veteran did not have a diagnosis. As noted above the Board concluded the Veteran does have a psychiatric disorder. The Veteran has consistently reported his stressors in-service; given his receipt of the Bronze Star Medal, an award given to service members for heroic or meritorious service or achievement in a combat zone, and the Veteran's description of his stressors, the Board finds that they are related to combat and do not require independent verification. As such, the question remaining for consideration is whether there is a nexus between the in-service disease or injury and the current psychiatric disorder. Here, the Veteran has provided private opinions from his treating psychologist and a private DBQ and the Veteran underwent a VA examination and an addendum opinion was supplied. In cases where there are two conflicting medical opinions, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value. Furthermore, the VA has a duty to uphold the benefit of the doubt rule, and in cases where the evidence is in relative equipoise, service connection must be granted. In weighing the VA opinion against the private medical opinion, the Board determines that the evidence for and against the medical nexus question is in relative equipoise. The December 2015 VA examination provided a negative nexus opinion to PTSD, stating the Veteran did not meet the DSM-5 criteria for a diagnosis of PTSD. The October 2016 VA addendum discussed the Veteran's past medical history and psychiatric disabilities, but concluded currently, the Veteran does not have a current mental disorder diagnosis. The June 2016 private opinion related the Veteran's PTSD symptoms to his reported in-service stressors. The June 2017 private DBQ provided a diagnosis of PTSD and major depressive disorder and noted the Veteran's past mental health treatment history. The private DBQ further detailed the Veteran's PTSD symptoms and diagnostic criteria. While the private DBQ does not provide a nexus opinion, it does provide additional mental health diagnoses. The Board finds that the June 2016 positive private nexus opinion, the June 2017 private DBQ, and the Veteran's lay statements are sufficient to establish service connection in this case. Accordingly, when resolving doubt in favor of the Veteran, the Board finds that the criteria for service connection for a psychiatric disorder, to include PTSD and depressive disorder, have been met. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, 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.