Citation Nr: 21040703 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 13-27 145 DATE: July 6, 2021 ORDER The Veteran's claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. Entitlement to service connection for an acquired psychiatric disorder, identified as PTSD with components of depression and anxiety, is granted. FINDINGS OF FACT 1. New and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for PTSD. 2. Resolving reasonable doubt in the Veteran's favor, his PTSD is related to his active duty service. CONCLUSIONS OF LAW 1. The criteria to reopen the claim for entitlement to service connection for PTSD have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from March 1966 to March 1968 and is a Veteran of the Vietnam Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2011, 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Whether New and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for PTSD The Board finds that NME has been received to reopen the Veteran's claim for PTSD. In a prior decision from September 2017, the Board declined to reopen the earlier denied claim for service connection for PTSD and remanded the matter as the recharacterized claim for an acquired psychiatric disorder other than PTSD, for additional development. The Board's September 2017 decision constitutes a final decision as it related to the claim for PTSD, however, the Veteran's claim for an acquired psychiatric condition continues before the Board. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. However, if new and material evidence is presented or secured with respect to a disallowed claim, the Board shall reopen the claim and review its former disposition. 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). "New" evidence is that which is not cumulative or redundant of that previously of record; while "material" evidence is that which is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156. If the evidence is new, but not material, the inquiry ends, and the claim cannot be re-opened. Smith v. West, 12 Vet. App. 312 (1999). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding re-opening." Since the September 2017 Board decision, numerous pieces of NME have been received. These include records related to additional mental health treatment the Veteran received through VA, numerous additional VA psychological evaluations, including as specific to PTSD (See VA Initial PTSD Disability Benefits Questionnaire (DBQ), August 2020), and a PTSD related DBQ from one of the Veteran's VA mental health providers (Review PTSD DBQ, prepared by Dr. J.C., February 2019.). The Board finds these documents and the evidence contained therein, to not be duplicative and are material to the claim before ethe Board. The Veteran's claim for entitlement to service connection for PTSD is reopened. 2. Entitlement to service connection for an acquired psychiatric disorder, identified as PTSD with components of depression and anxiety The Veteran claims that his for an acquired psychiatric disorder, to include PTSD, depression, and/or anxiety, were incurred in, or due to his military service. VA concedes that during his service as a Marine Corps infantryman serving in the Republic of Vietnam he was engaged in combat and was injured, for which he was awarded a Purple Heart. Additionally, VA concedes that the Veteran experienced 2 separate psychological stressors during his combat service as a Marine which include experiencing an attack from enemy forces during which he was personally injured, and that during this attack numerous Marines from his squad, including one of his personal friends, were killed and he was tasked with identifying the bodies of his fellow Marines. Service Connection Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There are particular requirements to establish PTSD that are separate from and in addition to those for establishing service connection generally. 38 C.F.R. § 3.304(f); Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). In order to be entitled to service connection for PTSD, there must be medical evidence of PTSD, medical evidence that establishes a link 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); Shedden, 381 F.3d at 1167. However, separate corroboration of the existence of a required in-service stressor is not required when the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat. 38 C.F.R. § 3.304(f)(2). VA concedes the Veteran's stressors qualify under this provision. Evidence of Record. As this appeal has a long and complicated procedural and evidentiary record, as well as very divergent and inconsistent medical diagnoses from the numerous medical examiners and providers who have examined and/or treated the Veteran for his mental health issues. These differing, but not exclusionary, diagnosed conditions include depression, anxiety, personality disorder, and PTSD. Therefore, the Board will focus on the evidence which supports its findings. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record). The Veteran's treatment with the VA for mental health issues began in February 2005, at which time he was diagnosed with an anxiety disorder and referred to the PTSD clinic due to positive PTSD screening. He was evaluated for PTSD and it was determined he did not meet the then applicable criteria, but thereafter he was treated for PTSD and there were numerous subsequent referrals for PTSD evaluations by his VA treating providers. Other select VA treatment entries include a November 6, 2009, VA Primary Care follow-up note where his diagnosis was stated to be depressive disorder, not otherwise specified (NOS), and included a separate diagnosis of depression with psychotic features. In a VA psychiatric progress note of March 16, 2010, the Veteran was noted to have a history and findings compatible with an Anxiety Disorder, NOS with post-traumatic stress features, a history of recurrent major depressive disorder, and chronic medical conditions and war exposure. He was also later noted to have memory issues. In a February 2012 VA psychology note the Veteran was noted to have diagnoses of dyssomnia NOS; and anxiety NOS with PTSD features, for which he was referred to the PTSD group. A May 18, 2012 VA mental health note indicated a history of major depression and PTSD. The Board notes that throughout this VA treatment history, the Veteran's war time stressors and experience were noted to be significant ant contributory factors to his mental health conditions. Then, in a January 25, 2016 VA psychiatry note, the Veteran was noted to have diagnoses of both PTSD and major depressive disorder, as per DSM-5. This diagnosis was made by VA psychiatrist Dr. A.G.L. In his June 2008 Initial PTSD VA psychological evaluation related to his claim for compensation benefits, the Veteran was found to meet the criteria for a diagnosis of PTSD under the then applicable Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM- IV), as well as the symptom criteria for persistent re-experiencing the traumatic event and hyper-vigilance. The examiner cited the Veteran's combat stressors. However, the VA examiner found that he did not fulfill the symptom criteria for persistent avoidance of the stimulus. The examiner also opined that he Veteran's trauma exposure did not impair his social, occupational, or other areas of functioning. Two of the Veteran's VA treating mental health providers, Drs. A.G.L. (dated January 27, 2016) and J.Q. (dated February 2, 2019 - NME), submitted PTSD DBQ's in support of his claim for entitlement to service connection for PTSD, in which they both indicated their personal treatment of the Veteran, and identify a diagnosis of PTSD related to his traumatic combat service, as well as a depressive disorder. Both indicated symptoms to include depression and anxiety. In the Board's August 2019 remand, the AOJ was requested to obtain addendum opinions for each psychiatric condition for which the Veteran was diagnosed and for each to provide and addendum opinion whether that condition was related to his military service, and, specifically, to address his in-service stressors. The Veteran was provided a VA psychological evaluation recorded on an Initial PTSD DBQ, of August 3, 2020. The VA examiner found that the Veteran did not meet the DSM-5 criteria for a diagnosis of PTSD, instead, identified a diagnosis of unspecified depressive disorder. The VA examiner did note the Veteran was treated by Dr. J.Q, for diagnoses of chronic PTSD and recurrent major depression. The VA examiner only noted the combat stressor related to the Veteran combat injury and found it to be adequate to support a diagnosis of PTSD. The VA examiner found that he Veteran only met the PTSD criteria that he was directly exposed to and experienced a threat to his person inkling death, Criteria A. None of the remaining criteria were met. The examiner also only noted symptoms of depressed mood, chronic sleep impairment, and disturbance of motivation and mood. The examiner acknowledged that the Veteran met the DSM-5 stressor criteria, but not the symptom criteria, including the requirements for persistent re-experiencing the traumatic event, avoiding reminders, increased anxiety or emotional arousal. The examiner further found that the Veteran's trauma exposure did not cause impairment in the rated areas of function including social and occupational. The examiner did not specifically address the Veteran's stressor of having seen and having to identify the dead bodies of his fellow Marines killed in the ambush, including that of his close friend. However, in a clarifying addendum opinion of August 17, 2020, the examiner indicated that the Veteran had ample opportunity to state, comment and discuss all of his stressors but did not mention being involved in the KIA body recovery and identification, only how he was injured in his left arm/shoulder. Further, the examiner did not provide analysis concerning Dr. J.Q.'s diagnosis of and treatment of the Veteran for PTSD even though this was noted in his history notes. The VA examiner also provided an opinion on August 3, 2020, where he confirmed the diagnosis of unspecified depressive disorder, but opined that it was less likely than so (less than 50 percent) incurred in or caused by his inservice events. The examiner based this on the rationale that the Veteran did not have any complaints of or treatment for any psychological disorder during or within one year of his separation form service, and that he only sought treatment in 2002 after his younger sister died, and therefore the examiner concluded that no nexus is established between his depressive disorder and his military service. In this opinion the examiner did not address the Veteran's anxiety disorder. However, the Veteran submitted an addendum opinion on August 17, 2020, in which clarified that the Veteran's depressive disorder was the same as identified by other diagnostic titles such as major depressive disorder or depression NOS. The examiner also clarified that the Veteran's depressive disorder features some anxiety as part of the whole condition, which was usually part of the Veteran's diagnosed depressive condition since 2005. Analysis and Findings The Board finds that the evidence is at least in equipoise in favor of the Veteran's claim and, therefore, affords to him the benefit of any reasonable doubt. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds that the evidence of record supports a finding that the Veteran does have a current diagnosis of PTSD which was incurred in or the result of his combat service as a Marine in the Republic of Vietnam. The Board also finds that his depressive and anxiety disorders are components thereof, all of which were present during the entire appeal period. The preponderance of the evidence supports a nexus between his PTSD and his military service. The Board finds to be most probative the opinions of the Veteran's VA mental health providers, Drs. J.Q. and A.G.L. who each affirmed the Veteran's diagnosis of PTSD and were actively and personally involved in his treatment at VA which spanned over many years. The Board also finds probative the fact that since he first sought treatment with the VA, his combat stressors were consistently identified as a source of his mental health conditions, regardless of the specific diagnosis, PTSD, depression, or anxiety, asserted at the time. From the beginning and on a regular basis, the Veteran's symptoms were thought to be PTSD related, for which he was referred for evaluation on many occasions and for which he actually sought and receive treatment. Unfortunately, the criteria for PTSD has changed over the course of the Veteran's claim pendency, form DSM-IV to DSM-5. The Board finds the August 2020 VA PTSD psychological evaluation and addendum opinions to be inadequate as they neither relied on a complete set of facts related to the Veteran's medical history and did not adequately address facts favorable to the Veteran's claims, i.e., the PTSD diagnosis from his VA treatment providers and the significance of and impact from his combat stressor related to his witnessing and having to identify his fellow Marines who were killed in the ambush which he survived. The Board also finds problematic the VA examiner's reliance on the fact that the Veteran did not himself raise the second combat stressor, which, due to its impact on the Veteran and his advanced age, imposes a duty on the VA examiner to have raised the issue, particularly since that was specified in the Board's remand instructions. Therefore, the Board affords them no probative value. The claim for entitlement to service connection on a direct basis for PTSD, which includes components of depression and anxiety, is granted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bannach, K. 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.