Citation Nr: 21039730 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-49 416 DATE: July 1, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) and depression secondary to PTSD are granted. FINDING OF FACT The most probative evidence of record establishes that the Veteran has a current diagnosis of PTSD with depression that is related to the in-service non-combat stressor of a parachute accident in service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD with depression are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1975 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) from a decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran and his spouse testified before the undersigned at an October 2020 Board hearing. The Board notes that the Veteran has pending claims for increased ratings for his degenerative disease of the lower back, sinusitis, right shoulder rotator cuff syndrome, left ankle strain, right ankle strain, radiculopathy of the left lower extremity, and gastroesophageal reflux disease. The Veteran also has pending claims of entitlement to service connection for erectile dysfunction, obstructive sleep apnea, and a total disability rating for individual unemployability. These matters are pending a Board hearing pursuant to the recently enacted Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act or AMA), Pub. Law 115-55, claims and appeal review system. The Board will provide a decision on these appeals as appropriate once the requested Board hearing has been conducted. 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that his PTSD and depression are etiologically related to service, or in the alternative related to his other service-connected disabilities. The Veteran is currently service connected for degenerative disc disease of the lower back; sinusitis; right shoulder rotator cuff syndrome with a tear and bicipital tenosynovitis; right wrist sprain; bilateral ankle sprain; gastroesophageal reflux disease; and radiculopathy the left lower extremity. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for PTSD requires (1) a current medical diagnosis of PTSD (presumed to include the adequacy of symptomatology and the sufficiency of a claimed in-service stressor in accordance with 38 C.F.R. § 4.125 (a)); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a causal relationship between the current symptomatology and the specific claimed inservice stressor. See 38 C.F.R. § 3.304 (f). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2015); Allen v. Brown, 7 Vet. App. 439 (1995). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on the places, types, and circumstances of service, as shown by military records and all pertinent medical and lay evidence. See Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.304 (f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether the Veteran "engaged in combat with the enemy." Id. If a Veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to fear of hostile military or terrorist activity, then the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). The question of whether a Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals. Whether the evidence establishes the occurrence of stressors, however, is a question of fact for adjudicators. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159 (a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, the Veteran contends that his PTSD is due to an in-service non-combat stressor. Specifically, the Veteran was involved in a parachute training accident, where his parachute did not open until the last minute, when his reserve chute opened. Further, the Veteran stated that while serving oversees in Korea, a tow rope incident relating to a tank broke and he almost fell off a cliff. The Veteran provided numerous statements relating to these stressors, including his Board testimony, reports to medical providers for treatment, and statements directly the AOJ. The Veteran's VA treatment records indicate the Veteran was first diagnosed with PTSD and depression in November 2012. A VA social worker indicated the Veteran had PTSD as a result of his service in the military and he had depression resulting as a result of his physical health. In January 2013, a VA psychiatrist diagnosed the Veteran with PTSD and depression. The Veteran's VA treatment records indicate that the Veteran was intermittently treated with therapy and medication for PTSD and depression throughout the appellate period. In April 2015, it appears the Veteran's VA psychiatrist provided a disability benefits questionnaire related to the Veteran's acquired psychiatric disorders. The VA psychologist diagnosed the Veteran with PTSD by history and with depression not otherwise specified. The psychiatrist did not find the Veteran met the full criteria for PTSD. The VA psychiatrist did not provide an opinion concerning the etiology of the Veteran's depression. In April 2021, the Veteran submitted a private psychological examination report. The private examiner noted the Veteran underwent a private examination in January 2021. During the examination, the Veteran reported he experienced emotional abuse and excessive punishment by his drill sergeant. The Veteran stated he experienced a serious parachute accident. The Veteran reported that during a training jump his parachute did not open. The examiner noted that while the Veteran was uninjured in the accident, the Veteran was deeply frightened by that event and highly conscious of the fact that if his reserve chute had not opened at the last minute he would have died. The Veteran also reported that when he was stationed in Korea and Germany he was separated from his other units with a vehicle that was disabled with little protection or ability to fend of hostile forces, which was extremely frightening to the Veteran. The private examiner noted a statement by the Veteran in the record which reported the Veteran had a near death experience regarding a towing pin on a tank failing near a cliff face. The examiner stated this incident continued to bother him for decades after the event along with the parachute incident. The private examiner diagnosed the Veteran with PTSD and major depressive disorder, severe, without psychotic symptoms. The examiner opined that the Veteran's PTSD is as likely as not related to military service events. The examiner found that the Veteran's depression is at least as likely as not secondary to the Veteran's service-connected disabilities and his PTSD. The examiner reasoned that this based on his reading of a previous DBQ. The private examiner concurred with those findings. As noted above, the Veteran has a diagnosis of PTSD by a VA psychiatrist. The Board cognizant that another VA psychiatrist found the Veteran did not have PTSD, but rather only depression. However, a different VA psychiatrist and social worker independently diagnosed the Veteran with PTSD, and he continued to be treated for PTSD. The private psychologist noted that the Veteran underwent an assessment which confirmed DSM-V PTSD. The positive diagnosis by the VA social worker, VA psychiatrist, and private psychologist outweigh the negative diagnosis provided in September 2015. Therefore, the Board finds that the Veteran has a current diagnosis of PTSD. Further, the Board finds a nexus between the claimed stressor and the Veteran's PTSD as the private April 2021 examiner found a nexus between the stressor of the failed parachute jump and the incident in Korea as causing the Veteran's PTSD. Thus, the only remain question is whether the Veteran's stressors can be verified. Providing the benefit of the doubt, the Board finds that the non-combat related stressor is verified. Specifically, the Veteran DD-214 indicates the Veteran underwent the basic airborne course and had his parachute badge. The Board finds that the Veteran is credible to report an incident in which his primary chute did not open, and his reserve chute did open. Coupled with the nature of an airborne course would likely require several jumps to which such an incident could occur. While it is true that the Veteran's testimony is the primary source of the stressor, the Board emphasizes that a stressor need not be corroborated in every detail, and the DD-214 corroborates a circumstance in which this stressor could happen. See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002). Therefore, providing all benefit of the doubt to the Veteran, service connection for PTSD is granted. Further, the Board finds the Veteran's claim for depression is granted secondary to the Veteran's herein service-connected PTSD. The Veteran has a diagnosis of depression, and the April 2021 private examiner found that the Veteran's depression was caused by the Veteran's PTSD. As such service connection for depression is granted as secondary to his PTSD. Based on the evidence of record and resolving reasonable doubt in the Veteran's favor, the Board finds service connection for PTSD and depression to be warranted. 38 C.F.R. §§ 3.102. The appeal of this issue is granted. Finally, the Board notes, that there has been no formal VA examination regarding the Veteran's psychiatric claims. However, the Board finds that further development in order to have a more complete record would cause unnecessary delay and would be impermissible. See generally Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (it is not permissible to undertake additional development for the purpose of developing negative evidence, and reasons and bases should be provided to explain the decision to pursue further development when it could be construed as obtaining evidence for that purpose). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.