Citation Nr: 22011973 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 18-28 666 DATE: March 2, 2022 ORDER Entitlement to service connection for acquired psychiatric disorders, to include PTSD, are granted. REMANDED Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's acquired psychiatric disorders, to include PTSD, are related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to September 1971. These matters are on appeal to the Board of Veterans' Appeals (Board) from a February 2015 rating decision. As an initial matter, the Veteran submitted a May 2018 RAMP opt-in election form electing to proceed under the Appeals Modernization Act (AMA) through supplemental claim review following the issuance of the Statement of the Case (SOC) that same month. However, the claim was subsequently certified to the Board under the legacy appeals process. A letter was mailed on October 5, 2021 and December 9, 2021 to the Veteran with copies to his representative of record requesting further clarification whether he would like to proceed under legacy or AMA. The letters made clear that if the Veteran wished to participate in RAMP, the enclosed form would need to be submitted to the Board within 60 days from the date of the letter. If there was no response, the Board would assume the Veteran wished to remain on the Board's docket, and it will be processed in the legacy appeals system. The Veteran and his representative did not respond to the letters. Accordingly, the Board will proceed with adjudication under the legacy appeals system. Entitlement to service connection for acquired psychiatric disorders The Veteran contends that his diagnosed mental disorder(s) are due to stressors that occurred while stationed in Vietnam. Given the varying mental health diagnoses of record, the claim has been broadened to include any psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Generally, the evidence 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. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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) (i.e., DSM-5); (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). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM-V); a link established by medical evidence, between current symptoms and a stressor in service; and credible supporting evidence that the claimed stressor in service occurred. 38 C.F.R. § 3.304 (f). Effective March 19, 2015, VA replaced outdated psychiatric references with references to the DSM-V. It was specifically noted that it was not intended for the provisions to apply to claims that were pending before the Board (claims already certified on appeal to the Board) on or before August 4, 2014. See 80 Fed. Reg. 14308 (March 19, 2015). As the current case was certified to the Board after August 2014, the DSM-V criteria is applicable. If the evidence establishes that the veteran engaged in combat with the enemy, the claimed stressor is related to that combat, and the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the VA allows the veteran to establish the occurrence of the claimed stressor through the veteran's "lay testimony alone" when there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304 (f)(2). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C. § 1154 (b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154 (b) must be resolved on a case-by-case basis. See VAOPGCPREC 12 99 (October 18, 1999). The medical records clearly show a diagnosis for a mental health disorder, though the given diagnosis has varied among medical professionals. In 2011, the Veteran's physician at Bay Area Family Practice diagnosed him with an anxiety disorder. In a document dated May 2014 created by a readjustment counselor, the Veteran was assessed to have "PTSD secondary to the horrors of war," citing to the Veteran's reports of surviving a mortar attack, shooting at the enemy, and finding a human hand while cleaning a fuel tank. Importantly, a diagnosis of PTSD must conform to the DSM-IV (the DSM-V as of August 4, 2014) pursuant to 38 C.F.R. § 4.125. A PTSD diagnosis provided by a mental-health professional must be presumed to have been made in accordance with the applicable DSM-IV (or DSM-V) criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor, unless there is evidence to the contrary. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Regarding the May 2014 document, it is unclear if the PTSD diagnosis was made in conformance with the DSM criteria. In October 2014, the same counselor, who signed as A.M. (initials), M.A., LMFT, (Licensed Marriage and Family Therapist), submitted a document labeled an assessment summary from the Vet Center stating that the clinician administered the PTSD Scale (CAPS) and that the Veteran met the DSM-V diagnostic criteria for PTSD. The Combat Exposure Scale was administered and indicated he had been in heavy combat as a radio operator on the USS Genessee requiring him to run fuel to an Army base from Da Nang to Qua Viet. In a January 2015 VA examination, the VA examiner determined the Veteran did not meet the DSM-V criteria for PTSD, though he did have an unspecified anxiety disorder. The examiner wrote that the Veteran reported an anxious mood since his reported service in Vietnam. He reported being on high alert as the ship he was on had been involved in some way with the TET offensive the year prior, killing four individuals on that ship. He thought he had killed someone and recalled surviving the mortar attack. The examiner found that the reported stressors of mortar attack and finding a human hand in a fuel tank were adequate to support a diagnosis of PTSD (criterion A) and were related to the Veteran's fear of hostile military or terrorist activity. However, he did not meet criterion C of persistent avoidance of stimuli associated with the traumatic event. No nexus opinion was provided because the Veteran did not meet the criteria for PTSD. In March 2015, a licensed therapist from the Vet Center, T.W., diagnosed the Veteran with chronic PTSD with delayed onset in accordance with the DSM-V. The letter states that the Veteran came to the Vet Center in May 2014 seeking treatment for symptoms of PTSD which came about as a result of his experiences during the Vietnam War. The letter also explained that in Vietnam, the Veteran functioned under combat conditions enduring small arms fire, sniper attacks, mortars, rockets, and enemy swimmer sappers. The Veteran's representative submitted a statement in October 2017 stating that the Veteran undergoes PTSD treatment in the form of individual psychotherapy with A.M., LCSW once to twice monthly at the Vet Center. In a February 2018 VA examination, an examiner again determined the Veteran did not meet the DSM-V criteria for PTSD, but he did have an unspecified anxiety disorder that was related to service. The examiner found that the stressors of mortar attack while ashore in Vietnam and finding the human hand in a fuel tank were both adequate to support a diagnosis of PTSD (criterion A) and were related to the Veteran's fear of hostile military or terrorist activity. The Veteran again did not meet criterion C. The examiner concluded that the anxiety disorder was at least as likely as not related to service, reasoning that the Veteran did not meet the DSM-V criteria for PTSD, but he did meet the DSM-V criteria for unspecified anxiety disorder upon examination, the military records support service in Vietnam, and therefore it was at least as likely as not that the unspecified anxiety disorder was incurred in or caused the fear of hostile terrorist or military activity during service. In March 2021, the licensed therapist T.W. diagnosed the Veteran with chronic severe generalized anxiety disorder with delayed onset, referencing the Veteran's reports of traumatic experiences on land in Vietnam as well as aboard the USS Genesee. The Bay Pines VA Medical Center records reflect generalized notations of PTSD, a mood disorder with possible PTSD, and an unspecified trauma-related disorder. The Veteran referenced his traumatic experiences in Vietnam on multiple occasions and indicated that he continued to have nightmares and intrusive thoughts related to these experiences. In June 2015, he was assessed with an anxiety disorder. In April 2017, the diagnostic impression was unspecified anxiety disorder, rule out general anxiety disorder, unspecified depressive disorder, and alcohol use disorder in sustained remission. His PTSD screening test at that time was negative. The Veteran's friend submitted a statement in May 2015 that he has observed the Veteran be sensitive to comments from others and any new environment he finds himself in. He has often exhibited episodes of anger and frustration and he can easily become upset in an unfamiliar situation. He must position himself in a room with his back to a wall so he can observe his surroundings. The Veteran's friend stated that his brother had been diagnosed with PTSD, and he has observed similar symptoms in the Veteran. There are two VA opinions finding the Veteran does not meet the DSM-V criteria for PTSD and two Vet Center opinions that do find a DSM-V diagnosis upon testing based on combat in service. All opinions appear to be credible based on the available evidence and examination of the Veteran; all opinions have significant probative value. Resolving reasonable doubt in favor of the Veteran, the evidence establishes a DSM-V diagnosis of PTSD. Turning to the next element, the Veteran's service records confirm service aboard USS Genesee from July 20, 1969 to September 27, 1969. Attempts were made to confirm the reported in-service stressor of a mortar attack on the base while the USS Genesee was docked at Da Nang harbor during the time period while the Veteran was ashore. The JSSRC response was that upon review of the 1969 command history and the August and September 1969 deck logs for the USS Genesee, the ship arrived at Da Nang on July 20, 1969. The mission was to transport products to various posts along South Vietnam. During those anchorages, a watch was kept for enemy swimmers. Procuring stores from Da Nang was a full day's work for at least ten people. On the scheduled pick-up day, the storekeepers (unnamed) caught the first boat to the beach where they hitchhiked two miles down the road to get a vehicle. They then picked up a ship's working party waiting on the pier and loaded the stores which took from 3 to 8 hours. They then returned to the fleet landing where they had to get a ride back to the ship in the harbor. On September 17, 1969, the ship departed for the Philippines. No ship personnel are recorded as stepping foot in Vietnam, and no mortar attacks are recorded. In response to the JSRRC response, the Veteran explained that he was part of a working party that went ashore to replenish the ship's stores. On one of those occasions, on the return trip to the ship via the Da Nang highway, they missed their turn and travelled into unfamiliar territory. They then experienced mortar shelling and sought shelter in a barracks. A print-out of an article from www.history.com submitted by the Veteran reflects that on August 12, 1969, Viet Cong forces launched a new offensive with attacks on 150 cities, towns, and bases, including Da Nang. North Vietnamese commandos fought their way into the U.S. First Marine Division headquarters in Da Nang. There were eventually driven out by the Marines, who killed 40 communist soldiers, sustaining five killed and 23 wounded in the process. The Veteran has submitted testimony that he ran fuel from Da Nang to Qua Viet. He recalled being there for approximately 9 months (though the service records only show approximately two months in Vietnam). Every month they went ashore to pick up stores for the ship. There were several occasions he stayed ashore in Da Nang and, on one occasion, there was bombing in the barracks by the enemy. VA treatment records reflect recollections from the Veteran of shooting at someone in service, as well as reliving the bombing or shelling in service. In March 2015, he described bad dreams and intrusive thoughts about combat experiences in Vietnam. He recalled the constant threat of attack and being on high alert at all times. In another statement, the Veteran explained that as his ship was anchored in Da Nang harbor, he was onshore procuring food (stores) for the ship. The food warehouses were located off base, just past the check point. This was not the first time he was onshore for that purpose. Once the stores were loaded, he returned through the check point. Suddenly, the Viet Cong began mortar shelling the base. He abandoned the truck and ran for the nearest barracks seeking shelter. The shelling lasted for what seemed like hours. The barracks quaked with each mortar hit and dust cascaded from the ceiling. It was the most terrifying day of his life and he does not recall how he got back to the ship. In his hearing, the Veteran reiterated his past testimony relating to his in-service stressors, specifically the mortar attack. The evidence is sufficient to establish that the Veteran engaged in combat with the enemy. While the JSRRC was unable to verify a mortar attack and could not specifically identify the Veteran as a member of personnel that went ashore replenishing stores, they did verify that the Veteran was in Da Nang aboard the USS Genesee and that personnel did come ashore to procure stores. The Veteran provided testimony consistent with the JSRRC response sufficient to establish that he was one of the personnel that went ashore to procure stores. The Board finds the Veteran to be a competent and credible historian. The described mortar attack was an encounter with the hostile enemy and was consistent with the circumstances of his service. As evidenced by the internet article submitted by the Veteran, mortar attacks were common and would reasonably be consistent with the hardships and circumstances of the Veteran's service. Additionally, the JSRRC response establishes that servicemembers had to stand guard and watch for enemy swimmers. The Veteran has stated on multiple occasions that he was standing guard on the ship and shot at an enemy swimmer. This also constitutes an encounter with the hostile enemy and was consistent with his circumstances of service. As there is no clear and convincing evidence to the contrary, the Board finds that the Veteran has established the occurrence of the mortar attack and enemy fire through his lay testimony consistent with 38 C.F.R. § 3.304 (f)(2). Finally, there is medical evidence linking the Veteran's symptoms and diagnoses with his claimed in-service stressor. Both therapists from the Vet Center referenced the PTSD in relation to the Veteran's combat experiences in Vietnam. The 2018 VA examiner provided a positive nexus between the Veteran's anxiety disorder and his in-service stressors. In the March 2021 opinion, T.W. found that the Veteran's generalized anxiety disorder came about because of his experiences during the war in Vietnam. The report specifically references the mortar attack, among other in-service stressors. Altogether, the evidence establishes a DSM-V diagnosis of PTSD and anxiety disorder, credible lay evidence of in-service stressors due to combat in Vietnam, and medical evidence linking the PTSD and anxiety disorder to the combat experiences. Service connection is granted. REASONS FOR REMAND Entitlement to a TDIU The Veteran contended in his hearing that he is unemployable due to his now service-connected psychiatric disorders, and there is medical evidence of record indicating such. Thus, entitlement to a TDIU is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In his hearing, the Veteran recalled long periods of unemployment, the most recent period being from 2016 to 2019. At the time of the hearing, he had a temporary job until June, and he did not think his contract would be renewed. A complete history of the Veteran's employment history, to include the details and status of his current employment, are not of record. Whether the Veteran meets the criteria for a schedular TDIU pursuant to 38 C.F.R. § 4.16 is potentially contingent on the pending assigned rating for his now service-connected psychiatric disorders. For the above reasons, the raised claim for entitlement to a TDIU must be remanded for further development, as well as pending an assigned disability rating. The matter is REMANDED for the following action: Once the service-connected acquired psychiatric disorders have been rated, develop and adjudicate the TDIU claim. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.