Citation Nr: 21040471 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-32 962 DATE: July 3, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) and depression is granted. REFFERED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) was raised by the Veteran's representative during the April 2021 hearing before the Board, and is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, a current acquired psychiatric disability is etiologically linked to in-service stressors. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD and depression have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to May 1971, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in May 2019 which resulted in an inaudible transcript. He was offered an opportunity to testify again before the Board. In April 2021, the Veteran testified before the undersigned Veterans Law Judge. The transcript of that hearing is of record. The Board notes that the Veteran's representative specifically questioned the credentials of the VA examiner conducting the Veteran's PTSD examination and asked for the examiner's qualifications and experience. See February 2021 Third Party Correspondence. Typically, the Veteran would be sent the VA examiner's credentials and the body of the decision would require factual findings of the examiner's competency in providing a medical opinion. See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). However, since this decision renders a full grant of benefits sought, any failure to address the competency of the VA examiner is considered non-prejudicial to the Veteran. The Board further notes that the Veteran has another appeal (AMA) pending at the Board. The Board is required by statute to adjudicate cases in docket order, except for certain situations set forth under 38 U.S.C. § 7107. As this case is not yet ready for adjudication under docket order requirements, the Board is prohibited from issuing a decision on the other issues on appeal. Accordingly, any additional issues remain pending at the Board and will be addressed in a separate decision in docket order. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Veteran contends that he is currently diagnosed with an acquired psychiatric disorder, to include PTSD, and that it was incurred in service. Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for listed chronic diseases if such were shown as chronic in service; manifested to a compensable degree within a presumptive period (usually one year) after separation from service; or were noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Whether lay evidence is competent and sufficient in a particular case is an issue of fact. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection for PTSD has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition, in accordance with 38 C.F.R. § 4.125 (a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f); see Cohen v. Brown, 10 Vet. App. 128 (1997). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see 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 VA determines that the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f)(2). No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the veteran's service." Id. If, however, VA determines that the veteran did not engage in combat with the enemy, or that the alleged stressor is not related to combat, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). 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 and his testimony must be corroborated by credible supporting evidence. Cohen, 10 Vet. App. at 142-43; Moreau, 9 Vet. App. at 394 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). The RO conceded that the circumstances of the Veteran's service and alleged stressors met the definition of "fear of hostile military or terrorist activity." The Board observes that the Veteran served in Vietnam from May 1969 to May 1971. His military occupational specialty was lineman. The Veteran contends that during the performance of his duties he was exposed to enemy fire and mortar attacks, and he was in constant fear for his life. The Board finds that the Veteran's alleged stressors are consistent with the circumstances, conditions, and hardships of his service. 38 U.S.C. § 1154 (a). Thus, the element of credible supporting evidence that the claimed in-service stressors actually occurred has been met. In regard to the elements of whether a current acquired psychiatric disorder is present, and whether such acquired psychiatric disorder is etiologically related to in-service stressor events, there is evidence in favor and against the claim. In regard to evidence against the claim, in December 2013, the Veteran underwent a VA examination. The examiner noted that based on the Veteran's self-report, he likely met the criteria for PTSD until about 5 years prior to the exam. The examiner noted the Veteran's report that his PTSD was particularly severe during the first 20 years after discharge and caused secondary depression and alcohol dependence. While acknowledging that the Veteran's reported stressor met the criterion to support a diagnosis of PTSD and that the stressor is related to fear of hostile military or terrorist activity, the VA examiner determined that the Veteran's symptoms did not currently meet the diagnostic criteria for PTSD under the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5) criteria. The examiner also diagnosed the Veteran with other specified trauma- and stressor-related disorder, which he also found did not meet the diagnostic criteria for a mental health disorder under the DSM-5. In regard to evidence in favor of the claim, a December 2014 VA psychiatry note shows that the Veteran has a history of PTSD and adjustment disorder. In an April 2018 medical opinion from Dr. N.F., the Veteran's treating VA psychiatrist since 2013, Dr. N.F. opined that the Veteran's PTSD is related to experiences while in the military. Dr. N.F. noted that the Veteran was deployed to Vietnam for 11 months and that he was ambushed, fired upon while unarmed, and slept in ditches while being rocketed. Dr. N.F. noted symptoms of recurrent memories and dreams, avoidance of situations that remind him of previous trauma, inability to recall key features of the traumatic event, detachment from others, irritability, problems with concentration, and exaggerated startle response. A July 2019 private examination report and medical opinion from Dr. Q.A-S. was associated with the file in September 2019. Dr. Q.A-S. conducted a clinical interview with the Veteran and reviewed the Veteran's service treatment records and medical records. Dr. Q.A-S. rendered a diagnosis of depression, severe, recurrent, without psychotic features, and PTSD secondary to Vietnam combat. Dr. Q.A-S. noted that the Veteran actively avoided seeking treatment for his mental health conditions until forced to by worsening of symptoms after retirement, due to the fear of stigma and distress caused by discussing his experiences. Dr. Q.A-S. noted current symptoms to include chronic severe mood disruption, anxiety, marked impairment in forming and maintaining effective relationships, and marked impairment in occupational functioning, and that the severity of the symptoms required intense supports from his spouse to function on a daily basis. Dr. Q.A-S. maintained that the Veteran clearly evidences depression and PTSD as a result of his experiences in Vietnam. The Veteran was afforded a Board hearing in April 2021. The Veteran testified to being in constant fear during his service in Vietnam. The Veteran testified that his company was on red alert and that he was assigned guard duty at night. The Veteran testified to being teargassed, being bombed, and seeing an ammo bunker blown up "right in front of us." Regarding his symptoms since service, the Veteran testified that experienced intense anxiety after discharge which led to substance abuse. The Veteran testified that he was eventually able to manage his symptoms by staying busy after he started a family and he began working night shifts and long hours. However, the Veteran testified that "everything came back" after he retired from a 40 year career and that he then sought treatment at VA. Given all of the foregoing, the Board finds that the evidence is in relative equipoise as to whether a current acquired psychiatric disorder is present, and whether such acquired psychiatric disorder is etiologically related to in-service stressor events. Accordingly, reasonable doubt is resolved in favor of the Veteran. Consequently, the Board finds that all three elements necessary to substantiate the claim have been met, and service connection for PTSD and depression is warranted. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, 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.