Citation Nr: 21042441 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 20-04 965 DATE: July 13, 2021 ORDER Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder with anxiety is granted. FINDING OF FACT The Veteran has been diagnosed with PTSD based on an established in-service stressor. CONCLUSION OF LAW The criteria to establish entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD, have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1995 to November 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the October 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which reopened the claim of service connection for PTSD and confirmed the previous denial of the claim. The Board subsequently denied the Veteran's claim for an acquired psychiatric disorder in a June 2020 decision. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In a March 2021 Order, the Court vacated the June 2020 Board decision regarding the acquired psychiatric disorder claim and remanded the matter for action consistent with the terms of a Joint Motion for Partial Remand (JMPR). In the March 2021 JMPR, the parties agreed that remand is warranted because the Board erred when it failed to consider the applicability of 38 C.F.R. § 3.304(f)(3) in its adjudication of the claim. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is 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. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). There are particular requirements for establishing service connection for PTSD that take precedence over the general requirements for establishing service connection in 38 C.F.R. § 3.303. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) medical evidence of a link between current symptomatology and the claimed in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred; and. 38 C.F.R. § 3.304 (f). 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. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho physiological state of fear, helplessness, or horror. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder The Veteran contends that he has PTSD and that his PTSD is related to traumatic events sustained and witnessed in service. In support of his claim, the Veteran has reported several in-service stressors. First, he reported that while he was deployed in Malaysia, he witnessed protestors fighting and killing each other. He stated that he was not able to prevent it or intervene and that, later, the foreign government brought a truck and began placing the dead bodies inside the truck. Second, he reported that during his second deployment between 1998 to 1999, he was in a helicopter and the pilot was going to deviate from the landing pattern. He stated that he was sitting at the window side when he saw the enemy pointing rockets at the helicopter, and he positioned his gun ready to pull the trigger. He thought they were going to open fire. Lastly, he reported that during the first deployment, he was in training excessively before going overseas. He stated that a helicopter went down and then the next day they went to recover body parts. He stated that he saw wreckage of the helicopter. Having reviewed the record, the Board finds that service connection for PTSD is warranted based on fear of hostile military or terrorist activity. The criteria to establish service connection for PTSD vary with regard to the nature of the in-service stressor. Here, the Veteran's claimed stressors suggest fear of hostile military or terrorist activity. With regard to PTSD due to fear of hostile military or terrorist activity, 38 C.F.R. § 3.304 (f)(3) provides that 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 confirms that the claimed stressor is adequate to support a diagnosis of PTSD 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 statements alone may establish the occurrence of the claimed in-service stressor. As an initial matter, the Board notes that the Veteran's service treatment records are silent as to complaints, a diagnosis, or treatment for an acquired psychiatric disorder. As to in-service stressors, the description of "fear of hostile military or terrorist activity" provided in 38 C.F.R. § 3.304 (f)(3) includes psychological symptoms resulting from having witnessed protestors in Malaysia fighting and killing each other and witnessing dead bodies being thrown in a truck, and well as having witnessed an enemy pointing a rocket while riding on a helicopter. As such, if the criteria set forth in 38 C.F.R. § 3.304 (f)(3) are met, the claim be may granted. Here, the Veteran's claim is based on his reported stressors during service. Again, he contends that he has psychiatric disorders as a result of those events. The Board notes that there is no clear and convincing evidence that the claimed in-service stressors did not occur. To the contrary, the Board notes that the Veteran's DD Form 214 indicates that he served as an Aircraft Maintenance Administration Clerk. The Veteran's DD Form 214 also shows that the Veteran had over eight months of sea service, and the Veteran's service treatment records confirm that he served aboard the USS Boxer. The Veteran's last duty assignment and major command supports that he participated in various split-ARG operations off the Horn of Africa, as well as supporting in Kuwait. Further, in support of his claim, the Veteran submitted a news report of the helicopter crash which the Veteran reported he witnessed; the protests in Malaysia; and records from the NARA of the list of U.S. military officers and soldiers who have died as a result of either hostile or non-hostile occurrences in the Korean War, Vietnam War, Gulf War, or War on Terrorism. Additionally, the Board notes that the VA examiners concluded that the Veteran's identified stressors were related to a fear of hostile military or terrorist activity. Here, the Veteran's claimed stressors are consistent with the places, types, and circumstances of his service. Thus, the Board concludes that the Veteran's in-service stressors, related to fear of hostile military or terrorist activity, occurred. As to diagnoses, the record reflects that the Veteran has been diagnosed with PTSD by a VA clinical psychologist in May 2019 and a private psychologist in January 2020. See May 2019 VA treatment record, October 2019 VA treatment records, January 2020 private report. The evidence also shows that the Veteran has a current diagnosis of an acquired psychiatric disorder, to include unspecified depressive disorder. See September 2017 Initial PTSD DBQ. In an April 2015 Initial PTSD examination, the examiner noted that the Veteran did not have a diagnosis of PTSD that conformed to DSM-V criteria. The examiner, instead, noted an Axis I diagnosis of unspecified depressive disorder. Upon examination, the examiner reported that the Veteran had daily variable atypical depression symptoms since at least his 1999 return to Camp Pendleton from his combat support cruise aboard the USS Boxer where he was a part of a fleet Marine presence for humanitarian services in Kenya and for peacekeeping operations in Bosnia. The examiner identified several stressors including (1) emergency leave from the USS Boxer in 1996 to attend to his wife's emergency delivery of their premature son; (2) assisting with the search efforts for a helicopter crew which crashed in the Pacific; (3) seeing rockets pointed at his helicopter when flying to Mombasa; (4) dropping off SEALs into insertion zones at night; and (5) being followed by armed men during a provisions run. The examiner collectively classified each of the above events into one stressor, noting that it met Criterion A and was related to the Veteran's fear of hostile military or terrorist activity. The examiner subsequently determined that Criterion A, B, D, E, F, G, and H were met. No response was provided as to Criterion C; thus, the Veteran did not meet the full criteria of PTSD. In a September 2017 Initial PTSD examination, the examiner noted that the Veteran did not have a diagnosis of PTSD that conformed to DSM-V criteria. The examiner, instead, noted an Axis I diagnosis of unspecified depressive disorder. The examiner noted three stressors, to include that the Veteran (1) witnessed protests in Malaysia that resulted in fatalities; (2) witnessed an enemy point a rocket at his helicopter, fearing that they would open fire; and (3) witnessed a helicopter crash that resulted in fatalities, during training before going overseas, and that he had to look for body parts. As to the first two stressors, the examiner noted that the stressors met Criterion A and that they were related to the Veteran's fear of hostile military or terrorist activity. The examiner noted that the third stressor did not meet Criterion A. The examiner subsequently determined that Criterion A, B, and D were met, but that Criterion C, E, F, G, and H were not met; thus, the Veteran did not meet the full criteria of PTSD. In the January 2020 private treatment record, authored by licensed clinical psychologist, Dr. E.T. formally diagnosed the Veteran with PTSD under the DSM-V. During Dr. E.T's assessment, he identified stressors and traumas, to include that the Veteran was subjected to witnessing a helicopter crash, witnessing protests and killings in Malaysia, seeing and collecting dead bodies, and witnessing enemy soldiers pointing rockets at his helicopter. Dr. E.T. also concluded that these distressing events that the Veteran witnessed and experienced caused his PTSD. Dr. E.T. further noted that the Veteran's PTSD symptoms have caused significant turmoil and inadequate impulse control, due to near continuous anxiety and depression, that significantly affects his daily functioning. As Dr. E.T. personally evaluated the Veteran and considered the history of his symptoms as well as his lay statements, the Board finds the assessment probative. Given the above, the Board finds that the evidence of record is approximately evenly balanced as to whether the Veteran meets the diagnostic criteria for PTSD. Cohen v. Brown, 10 Vet. App. 128, 139, 140 (1997) (mental health professionals are presumed to know the requirements applicable to their practice and to have taken them into account when diagnosing PTSD). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that the Veteran has met the current disability requirement with regard to the claim for service connection for PTSD. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Regarding a nexus, the Board also finds the private opinion probative. The private examiner noted the Veteran's lack of psychiatric symptoms prior to service and indicated that the Veteran's post-service symptoms, such as his anxiety and fears, are directly related to his identified in-service stressors. The VA examiners did not identify the more likely etiology of the Veteran's acquired psychiatric disorder, but rather provided conclusory statements that there was no sufficient evidence that the Veteran's symptoms associated with unspecified depressive disorder were incurred in or caused by his time during service. As the private examiner's rationale is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data, the Board finds the opinion probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, having assessed the Veteran's overall history and identifying specific symptoms relating to events that took place in service, the Board finds the private opinion more probative than any remaining probative value of the VA opinion. As such, a nexus is established, and the criteria to establish service connection for PTSD have been met. 38 C.F.R. § 3.304(f)(3). Accordingly, the appeal is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.