Citation Nr: 22012879 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 18-05 284 DATE: March 7, 2022 ORDER Service connection for a psychiatric disorder, characterized as major depression, is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, the Veteran's psychiatric disorder, characterized as major depression, had its onset in service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, characterized as major depression, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1986 to July 1990, with service aboard the USS New Jersey. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). By that decision, the RO denied service connection for post-traumatic stress disorder (PTSD) and depression. As there are multiple psychiatric diagnoses of record, the Board finds that it is appropriate to characterize the claim broadly as one of entitlement to service connection for a psychiatric disorder, to include PTSD and major depression. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2022. Service Connection Service connection for a psychiatric disorder, characterized as major depression, is granted. The Veteran reports that his current psychiatric disorder began while on active duty and has been present since then. More specifically, he asserts that he has had recurrent anxiety, depression, anger and hypervigilance since two attempted personal assaults in Philippines around November 1989. He has stated and testified that in the first incident he was going to meet a friend for dinner while on shore leave in the Philippines. He went down the wrong road and was accosted by two Philippine people who were part of the New People's Army (NPA) communist forces who were fighting the government. One of the individuals raised a rifle to him from five feet away and directed him to halt. Another ordered that person to shoot the Veteran. After tense questioning at gunpoint, he was allowed to leave as one of the men apparently recognized him from volunteering at the children's orphanage the day prior. The Veteran fled the scene as fast as he could. Early the next morning he got into a trike-cab to go back to his ship, as he had to stay in town due to a midnight curfew in town, and the driver and another passenger in the front drove him around for a long time. They discussed amongst themselves how they had recently stabbed and killed another U.S. service member who did not pay his fare. They then looked back at the Veteran menacingly and one of them drew a knife and moved towards the Veteran. He tussled with them, the knife fell, and he managed to get away and get back to the base where his ship was. The Philippine guards at the gate laughed at him when he told them the story. He discussed the incidents with a Catholic chaplain on the USS New Jersey but does not know if the report is accessible or was even recorded. See, e.g., October 2017 Statement in Support of Claim and April 2018 Buddy Statement; see also, Veteran's testimony, Vet Center records dating from 2017. After a review of the evidence of record, the Board finds that service connection for a psychiatric disorder, characterized as major depression, is warranted. To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active-duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD; (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 also Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125 (a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 38 C.F.R. §§ 3.304 (f), 4.125. VA's regulations in part 4 of the Code of Federal Regulations provide guidance about the interpretation of certain types of impairments in assessing disability and thus may inform whether those impairments can be compensated as a disability. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). The United States Court of Appeals for Veterans Claims (Court) in Martinez-Bodon held that the plain language of § 4.130 requires a DSM-5 diagnosis to compensate a psychiatric disability and that the most reasonable interpretation of § 4.125(a), when read in conjunction with § 4.130, requires the same. Id. at 401. First, there is current disability inasmuch as the behavioral therapy records from R.S.B., MSW, reflect diagnosis of severe recurrent major depression dating from 2020. Vet Center treatment records dating from 2017 are replete with reference to treatment for psychiatric disorder-related problems linked by the Veteran's account to the aforementioned incidents in the Philippines, dating from February 2017. While there is a finding of PTSD in these records, the diagnosis of PTSD does not conform to DSM-5. Regardless, there is current psychiatric disability, characterized as recurrent major depression. Second, there is evidence of the condition in service. The Veteran was evaluated at the behest of the USS New Jersey's chaplain in April 1987 for anger issues on deck. There was no psychiatric pathology found at the time other than possible personality disorder. The June 1990 separation physical examination was normal as to psychiatric disability. However, one of the Veteran's fellow sailors on the New Jersey submitted a written statement dated in April 2018 corroborating the incidents that occurred in November 1989 as described by the Veteran. This fellow sailor was awaiting the Veteran's arrival at the local establishment in Olongapao City while the USS New Jersey was visiting Subic Bay. When the Veteran finally showed up, he reported what had happened as to the first incident. The sailor noted the Veteran had stayed in town that night as he had already rented a room and had to observe curfew due to a conflict between the US Air Force and the NPA. When he saw the Veteran onboard ship the next day, the Veteran was worked up and he reported to him what happened. The Veteran had always been a 'calm guy' but after that incident he was always ready to fight, lost his patience quicky and drank more heavily. Also, the Veteran has consistently stated for years that he has emotional and psychiatric problems beginning with and related to the Philippine incidents. He reported in an October 2017 statement in support of stressor that he began drinking heavily right after the incident and had anxiety in crowds, reacting to body language and smells since then. He further elaborated on this in his candid testimony before the undersigned. Third, the Veteran has candidly testified that his current psychiatric disorder has been continuously present since these incidents. The testimony is relevant to the fact that the current psychiatric problems have been present since service. Moreover, the Veteran's fellow sailor reported that the Veteran's behavior changed and remained changed after the incidents as noted above. This buddy statement combined with the Veteran's statements and the references in the Vet Center records is relevant to the fact that the current psychiatric problems have been present since service. On balance, the evidence shows that the Veteran's current psychiatric disorder is related to service, thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303 (a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). In reaching this determination, the Board finds the Veteran's statements, his testimony, his fellow sailor's statement, and the Vet Center records supporting that the psychiatric disorder began in service to be consistent with the record, competent, and credible. Collectively, the evidence shows that the Veteran's current psychiatric disorder characterized as major depression had its onset in service and has been present since service. The competent and credible evidence is approximately balanced as to whether service connection for the psychiatric disorder characterized as major depression is warranted. The benefit of the doubt doctrine applies. 38 U.S.C. § 5107(b), Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021). As such, service connection is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.