Citation Nr: 21040720 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 15-39 106A DATE: July 6, 2021 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) with major depressive disorder is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his PTSD with major depressive disorder is at least as likely as not related to fear of hostile military activity. CONCLUSION OF LAW The criteria for service connection for PTSD with major depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from January 1967 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board remanded this matter for further development. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a 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 between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Entitlement to service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence between current symptoms and an in-service stressor; and (3) credible supporting evidence that a claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f), 4.125. The Veteran contends that he has PTSD related to his service in Korea. For the following reasons, the Board agrees. There is conflicting evidence over whether during the period on review the Veteran had a diagnosed mental health disability. After remand, in June 2020, the Veteran underwent a VA examination. The examiner found the Veteran to not meet the criteria for a mental health disorder and that his past mental health disorders have resolved. It is unclear though if the examiner made any finding if the Veteran had a diagnosed mental health disability at any point during the period on review. As such, the Board will afford the diagnosis of the VA examiner less probative weight. The Veteran submitted a March 2021 private examination in support of his claim. The private examiner diagnosed the Veteran to have PTSD with major depressive disorder in accordance with both the DSM-IV and DSM-5. The private examiner is competent to diagnose the Veteran with a mental health disability, the Board finds them to be credible and affords the diagnosis great probative weight. As such, the Board finds that the evidence supports a finding that the Veteran has a diagnosis of PTSD with major depressive disorder. Turning to the second element, an in-service stressor. The evidence consists of the Veteran's lay statements and the findings of the private examiner. The Veteran contends that his PTSD stressor is related to fear of hostile military activity. If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). Fear of hostile military or terrorist activity includes a threat to the physical integrity of the Veteran or others, such as from incoming artillery, rocket, or mortar fire. Id. If, however, the Veteran did not serve in combat, or if the claimed stressor is not related to combat or the fear of hostile military activity, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor. See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). Furthermore, an opinion by a medical health professional based on post-service examination of the Veteran cannot be used to establish the occurrence of a stressor. See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). In a June 2014 letter, the Veteran described his stressors originating from his service in Korea. Specifically, he stated that he was fearful of an attack by North Korea when they captured the USS Pueblo and when the PKA crossed the demilitarized zone and attacked the Blue House. In a December 2020 statement, the Veteran described weekly simulated drills while stationed in Korea that created a fear for him when he heard the sirens fearing if it was another drill or a real attack. He eventually developed sleep problems out of fear of the sirens going off and was jumpy out of fear of a North Korean attack. The Board finds that there is no reason to doubt the Veteran's credibility with regard to his description of the in-service events that are consistent with the places, types, and circumstances of service. Furthermore, the March 2021 private examiner found the Veteran's stressors to be adequate to support a diagnosis of PTSD. As such, the Board finds that the Veteran's claimed in-service stressor occurred. Turning to the element of nexus, the evidence consists of a VA examination and a private examination. The VA examiner did not find the Veteran to have a diagnosed mental health disability. As the Board has found the Veteran to have a diagnosis of PTSD with major depressive disorder, the Board affords the findings of the VA examiner little probative weight. In contrast, the private examiner found that it was as likely as not that the Veteran's psychiatric symptoms emerged after his stressors experienced in Korea including fear of hostile military activity. The examiner based their opinion on the Veteran's description of the onset of his symptoms. The private examiner is competent to provide this opinion, the Board finds them to be credible, and affords the opinion great probative weight. The Board finds the evidence to be in relative equipoise. If the evidence is supportive or is in relative equipoise, then the veteran prevails. See 38 C.F.R. § 3.102. Accordingly, service connection for PTSD with major depressive disorder is granted. 38 C.F.R. § 3.304. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.