Citation Nr: 21039826 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-21 088 DATE: July 1, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, including generalized anxiety disorder (GAD), persistent depressive disorder, panic disorder without agoraphobia, is granted. FINDINGS OF FACT 1. The more persuasive medical evidence does not support a diagnosis of PTSD. 2. The evidence is at least in equipoise that the Veteran's psychiatric disorder is at least as likely as not related to stressful events during his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a psychiatric disorder other than PTSD have been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during an April 2019 video conference hearing and a transcript is of record. First, the Board notes that additional evidence was submitted by the Veteran directly to the Board following the 2021 supplemental statement of the case (SSOC). Although the evidence has not yet been considered by the AOJ, as the Veteran filed his substantive appeal after February 2013, waiver of that evidence is presumed. In August 2019, the Board initially remanded the claim for additional development. Subsequently, in April 2020, the appeal was again remanded by the Board in order to obtain updated VA treatment records, private treatment records, development for federal and service records, an addendum medical opinion, and readjudication. That development having been completed to the extent possible, the matters are again before the Board for appellate review. The Board notes that although requests for the deck logs for the naval ship the Veteran served on were requested, it was noted that there were a few months of logs missing. There is no suggestion these documents exist, so no further requests are needed. Further, the Board remand directives requested specific private medical records. The Veteran was sent post-remand development letters, but he responded that the notation of such records was made in error and these do not exist. As such, the RO completed the request for private records to the extent possible. Finally, the Veteran argued that VA did not do their duty to assist in obtaining documentary evidence by assisting him in finding servicemembers from his ship. Such a request is not part of the duty to assist on VA's part. As such, other than as immediately discussed, there were no other issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of the Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). The Veteran contends that he has an acquired psychiatric disorder, claimed as PTSD, anxiety disorder, and/or depressive disorder, that is etiologically related to in-service stressors (events). In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition to the elements for service connection stated above, with respect to PTSD in particular, the regulations provide: "Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; 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." See 38 C.F.R. § 3.304(f); Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise that the criteria for service connection for a psychiatric disorder have been met. First, the Board concludes that the Veteran has a current psychiatric disability. The February 2020 VA examiner diagnosed the Veteran with schizotypal personality disorder and persistent depressive disorder, and his VA medical records show ongoing reports of and treatment for persistent depressive disorder with anxiety. The Social Security Administration disability report includes a psychiatric evaluation from December 2012, wherein he was diagnosed with chronic mood disorder with features of depression and features of PTSD. The private medical doctor also provided a diagnosis of depression and PTSD (see April 2019 DBQ) however, PTSD has been specifically ruled out by VA medical providers as well as the 2021 VA examiner. VA regulations state that if a veteran's claimed stressor is related to fear of hostile military or terrorist activity and is adequate to support a diagnosis of PTSD, it must be confirmed by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted. The private medical professional is not a VA examiner or a VA contracted examiner and although he provided a diagnosis of PTSD, the diagnosis is not adequate for rating purposes. See 38 C.F.R. § 3.304(f)(3). As such, the Board concludes that the Veteran's psychiatric symptoms are best diagnosed as depressive disorder, but encompass all of the symptoms variously diagnosed as anxiety disorder and depressive disorder. Thus, the question becomes whether the current disability is related to service. On this question there are opinions both against and in favor of the claim. Against the claim is the February 2020 VA examiner's examination report and medical opinion. Specifically, the examiner provided the diagnoses of schizotypal personality disorder and persistent depressive disorder but marked them both as non-service connected diagnoses. The examiner discussed the medical records, but stated the Veteran did not have a real trauma event but that "the threat only exists in the Veteran's perception." The examiner also relied on the fact that the Veteran's MOS was in the supply store, and noted that a store clerk would not be in charge of the depth of the boat and stated "there is a strong, almost delusional aspect to the Veteran's account; the Veteran is so adamant in the conviction of his own perceptions." As such, the examiner opined that it was less likely than not that the Veteran's psychiatric disorders were incurred in or caused by the claimed in-service injury or event. The Board notes that the examiner's reliance on the Veteran being a store clerk and not in charge of the depth of the boat is also patently false; the military personnel records indicate that in December 1990, he became helmsman/planesman. Following the Board remand, an addendum opinion was requested in March 2021. The examiner opined that the Veteran does not meet the criteria for PTSD. The examiner discussed the April 2019 private medical opinion (discussed immediately below), and stated that the evidence Dr. R.K. cited to "are only etiological from the Veteran's perception of events." The examiner stated that he "did not find nor obtain reference in the record to any verified, objective, in-service stressor. The Veteran contends, it is his perception, the boat was in danger as the in-service stressor." However, as noted above (and discussed by the private doctor see below), the deck logs from the time period the Veteran references have not been obtained in spite of multiple requests. The examiner also noted the Veteran's reports of anxiety onboard the submarine when the boat descended to depths, but stated this "would be normal...everyone on board experiences anxiety when the boat descends to depths...boats are supposed to be on the surface." The examiner then stated that "if perceptions alone are tantamount to criteria A trauma, then the examiner acquiesces to"...service connection for anxiety and obesity for being unfairly discharged. The examiner further stated he has no opinion regarding the assertions of weight gain issues noted in the service records and could not conclude that the stress on the submarine is the sole etiological reason for the Veteran's over-eating which resulted in obesity which resulted in his discharge; he noted that the Navy is allowed to uphold its own standards as the rationale. While that may be true, and the Board appreciates the examiner's consideration of the record in discussing the opinion as requested and is afforded some probative value; the overall opinion is contradictory. As noted, the examiner made conclusory opinions as to the weight gain assertions, stated the emotional eating was not the SOLE reason which postulates that it is, in fact, a possible etiology and conceded service connection for anxiety which led to the obesity based on the Veteran's lay statements and his own perceptions. Regardless of whether the examiner believes the Veteran should not have been so stressed while on a submarine underwater should not deduct the stress and anxiety this particular Veteran had while on the submarine. Conversely, in April 2019, the Veteran submitted a private disability benefits questionnaire (DBQ) from Dr. R.K. After examining the Veteran and reviewing his medical history records, including the service records and statements from the Veteran, Dr. R.K. opined the Veteran has a diagnosis of panic disorder with depression and PTSD. The doctor further opined that the Veteran has trust issues "as a result of the trauma he experienced in the service" and that he currently has symptoms to include depression, anxiety, panic attacks, sleep impairment, inability to establish and maintain relationships, and impaired impulse control. Following the examination, Dr. R.K. opined that the stress the Veteran experienced while in service and while on the submarine "is at least as likely as not the cause of his anxiety disorder with depression." The doctor noted the service records showed that the Veteran began over-eating and became obese as a result and noted that the Veteran has reported that "his over-eating was a coping mechanism for the high stress levels and anxiety he began experiencing in service...while on the submarine." In an April 2021 letter from Dr. R.K. following the SSOC, Dr. R.K. provided a follow up to his 2019 examination and opinion, as well as a response to the 2021 VA examiner's opinion. He stated the Veteran does currently suffer from panic disorder with depression and PTSD. He discussed the incident with the chaplain discussing a private matter with the Veteran's commanding officer which led him to have trust issues and getting along with others. He discussed the training exercise wherein the Veteran was told to deep dive the submarine to dangerous levels and correct it quickly before endangering the submarine; though he did it, the Veteran stated this caused him a great deal of stress and remorse and anxiety as he, as helmsman, was responsible for the lives of the others on the ship and he was tasked with a significantly dangerous behavior by his training officer. The doctor notes that this incident occurred in March 1992 which, as confirmed by VA, there are no corresponding deck logs for this month. As such, these missing records, at not fault to the Veteran, may have corroborated the event. Following service, the Veteran's psychiatric records indicate he has had trouble trusting others, even friends of family, and he leads a very isolated life with little interaction with others. He reported panic attacks, social anxiety, decreased focus, agitation, irritability, and intense thoughts. The doctor cited to medical literature, that "it is well-established through medical literature that stress is a major risk factor for mental disorders." Citing to a medical journal: "the study noted that severe and/or prolonged stress causes overactivation and dysregulation of the hypothalamic pituitary adrenal axis thus inflicting detrimental changes in the brain structure and function. Additionally, the study notes that exposure to long-lasting stress diminishes overall health and increases vulnerability to mental disorders." Dr. R.K. cited to another medical journal regarding neurobiology, stating "stress and resultant changes in affect are associated with increased morbidity and mortality, including increased rates of mental illness and suicide. The study also noted that robust evidence has linked the experience of chronic stress to onset of major depressive disorder, bipolar disorder, and posttraumatic stress disorder." Dr. R.K. therefore opined that, after considering all other possible etiologies and considering the Veteran's medical records, letters in support, and supportive medical literature, "it is my professional opinion that [the Veteran's] mental conditions, including persistent panic disorder with depression and PTSD, are at least as likely as not a result of the incidents, and resulting stress, he experienced during his time in service." The Veteran also provided sworn testimony during the 2019 Board hearing regarding the day-to-day stressors of serving aboard a submarine: "if one person fails to do their job, we could all die." The Board finds that the statements made during the testimony are facially plausible because they are generally consistent with the hazards inherent to such service. The Veteran also stated that prior to service, he was sociable, had friends, and was happy, but after being on the submarine and that being on a submarine means you get hazard pay because it is high stress affected him. He stated he began overeating as a means to cope with the high stress while on the submarine. Finally, he testified that he did not seek help for his mental health sooner because he was not raised to talk about it. In a June 2020 statement, the Veteran reported he is prescribed medication to help suppress his nightmares/dreams of service, and that when he stops taking the medication, he begins having the dreams and has thoughts of what happened in service again. He asserts that the VA examiners have failed to take this into account, but rather disregard his reports and statements. The Veteran has also contended that he over ate during active service aboard the submarine to cope with stress; and his service treatment records document in-service weight gain issues and dietary counseling for same. For example, the service records indicate that the Veteran's weight gain began while in service and that he was reprimanded for being obese (see military personnel records where he had adverse evaluation reports in January 1991 and April 1992, and in February 1991, he had deficiency due to being over 25 percent body fat and medically evaluated as obese; see also STRs showing dietary counseling and weight concerns). Dr. R.K.'s 2019 opinion included suggesting in-service weight issues were a coping mechanism for high stress and anxiety the Veteran began to experience during service. Additionally, VA outpatient treatment records showing ongoing, current issues with "emotional eating" (e.g., July 2015 and August 2015 VA primary care notes; January 2014 VA psychiatry note). Further, the March 2012 VA medical records show that he reported being betrayed, discussed the deep dive on the submarine where he had "feared being killed" and that he felt "constantly under the threat as it is usually under water and anything can happen at any time." He has also reported that he has since become socially isolated and it has gotten worse since service. He was diagnosed with panic disorder without agoraphobia and depression, but PTSD was ruled out. Finally, the Veteran's father submitted a statement in April 2019, stating that prior to service, the Veteran was outgoing and enjoyed being involved in the community and had a lot of friends. However, after discharge from service, the Veteran's father stated "he came home a different person. He had a different air about him." Specifically, he stated that the Veteran would snap at others for no reason, he was mean, he wanted to be left alone, and would not let anyone get close to him. The Board finds that the private opinions and the Veteran's sworn testimony have some probative value in linking the Veteran's depression to his active service, including the deep diving submarine incident which the Veteran has consistently and credibly argued this felt like a threatening situation, and the 2019 private examiner's opinion, with 2021 addendum, provides additional support for finding that the Veteran's depression had onset during service while on the submarine. The Veteran's testimony as to his locations and scope of duties during the time periods in question is consistent with the circumstances and conditions of his service; and, as noted above, although the deck logs are not available for the specific time period in question, that is at no fault to the Veteran. He has consistently discussed the incident that occurred in service in his private, VA and SSA medical records, and the particular time period he stated the incident occurred has consistently been missing from the deck logs following multiple requests to the Naval Command for those deck logs to corroborate his reports. Further, the Veteran is competent to relate the stressor event of being isolated on a submarine and being coerced by a higher-ranking officer to perform a dangerous task, for which he was responsible for the lives on the submarine during this reportedly dangerous deep dive. There is no reason shown to doubt his credibility in this regard. Washington v. Nicholson, 19 Vet. App. 362 (2005). As such, the Board finds that his statements concerning the incident in service are not only competent, but also credible and thus probative. Struck v. Brown, 9 Vet. App. 145, 155-156 (1996). As there is both positive and negative evidence for and against the Veteran's claim with regard to the etiology of his current psychiatric disorder, the evidence is in relative equipoise. The favorable evidence is based on the Veteran's statements regarding his experience in service, mental health records from service and post-service, the SSA records, and the private medical examination and opinions of the Veteran. Although the 2020 and 2021 VA examiners provided probative opinions, the April 2019 and 2021 addendum private medical opinions are equally probative, and the Board can discern no reason to weigh one more than the other. As such, upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's psychiatric disorder is otherwise related to his active service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder is warranted and the claim is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.