Citation Nr: 22013301 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 14-40 998 DATE: March 9, 2022 ORDER Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include unspecified depressive disorder and unspecified anxiety disorder, is denied. REMANDED Entitlement to service connection for PTSD is remanded. Entitlement to service connection for disability manifested by sleep disturbance, to include obstructive sleep apnea (OSA) or insomnia, to include as due to PTSD. FINDING OF FACT The evidence shows the Veteran's acquired psychiatric disability other than PTSD, to include unspecified depressive disorder and unspecified anxiety disorder, is not related to his service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability other than PTSD, to include unspecified depressive disorder and unspecified anxiety disorder, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1985 to January 1989 and from March 1991 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal of February 2013 and April 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). A Board decision in August 2020, in pertinent part, denied the Veteran's claim for entitlement to service connection for PTSD. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in April 2021, the Court granted a Joint Motion for Partial Remand (JMPR) by the Veteran and VA General Counsel, to vacate the Board's decision and remand the case for readjudication in accordance with the JMPR. In December 2017, the Veteran testified during a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Acquired psychiatric disability other than PTSD The Veteran seeks service connection for an acquired psychiatric disability other than PTSD, to include unspecified depressive disorder and unspecified anxiety disorder. The Veteran reports his psychiatric symptoms resulted from fear he suffered from when he was serving in the Persian Gulf during the Gulf War when he was told there were possibly mines in the Persian Gulf. The Veteran's wife, M.S.C., stated the Veteran has suffered from nightmares and flashbacks after Desert Storm, and he was not the same as he was before he entered the service. After service he was distant, sad, lethargic, and always jumpy and on guard. He no longer had interest in social activities. The Veteran's therapist, K.S., stated in March 2021 correspondence, that the Veteran's mental health conditions are a result of traumatic experiences during his military service during Desert Storm. The Veteran's treatment records establish that the Veteran has been diagnosed with major depressive disorder during the appellate period. The September 2012 VA examiner diagnosed the Veteran with anxiety disorder not otherwise specified and September 2020 VA examiner diagnosed the Veteran with unspecified depressive disorder and unspecified anxiety disorder. Consequently, the current disability element of a direct service connection claim has been satisfied. As to an in-service event, injury or disease the Veteran's service treatment records do not reflect complaints related to a psychiatric disability. At the December 2017 Board hearing the Veteran testified that while he was deployed to the Persian Gulf during the Gulf War he feared for his life when he was told they may encounter mines. The Board notes that suffering from symptoms of fear in a war zone is generally consistent with the conditions of the Veteran's service, as reflected in his DD Form 214 and the service records. See 38 U.S.C. § 1154 (a)(1). In addition, the Veteran is competent to report symptoms, such as fear, that he experienced while in service. As such, the Board finds there is evidence of an in-service event. Therefore, the question remaining for consideration is whether there is a causal relationship between the in-service event and the Veteran's current acquired psychiatric disabilities. The Veteran's service treatment records contain no evidence of complaints, treatment, or diagnosis of an acquired psychiatric condition. The Veteran's entrance and separation examinations show normal psychiatric examinations. In September 2020 a VA examiner thoroughly reviewed the Veteran's claims file. The examiner stated the Veteran's claimed acquired psychiatric disability other the PTSD was less likely than not incurred in caused by the claimed in-service injury, event, or illness. The September 2020 VA examiner explained that the Veteran's psychiatric symptoms meet DSM-5 diagnostic criteria for unspecified depressive disorder and unspecified anxiety disorder (previously diagnosed as anxiety disorder NOS using DSM-4 criteria; the new diagnosis is the same condition as it was during the September 2012 PTSD examination but has been changed to reflect the DSM-5 diagnosis for the same condition. The examiner stated that the Veteran's sleep problems have consistently presented within the context of depression and chronic pain since sleep problems were first noted on June 07, 2006, at which time the Veteran reported poor sleep and other depression symptoms for the past 10 years since breaking his ankle while working for United States Postal Service (USPS). He did not report nightmares or any military-related psychiatric problems at that time. It is noteworthy that in 2004, when he was first seen for psychiatric symptoms, he did not report sleep problems or depression. Rather, he presented with anxiety with panic attacks that had been occurring for one year at that time. Therefore, the totality of evidence in the claims file shows the Veteran's sleep problems had their onset along with depression after breaking his ankle while working for USPS, which was after he discharged from the military. His sleep problems are a symptom of depression and do not, therefore, meet DSM-5 diagnostic criteria for an insomnia disorder because his depression adequately explains the complaint of insomnia (DSM-5 Criterion H for insomnia disorder not met). While the Veteran began relating sleep problems to military-themed nightmares in more recent years, this is inconsistent with the evidence in the claims file that shows he reported sleep problems with other depression symptoms after breaking his ankle and did not report nightmares related to his military service at that time or for several more years, around the time he began applying for service connection. The Veteran's wife's lay statements about him not being the same since his military service and having problems with depression, anxiety, and sleep since the end of his military service is not supported by the objective evidence in his claims file. The Veteran's diagnoses meet DSM-5 criteria for unspecified depressive disorder, with sleep problems subsumed under his depression diagnosis, and unspecified anxiety disorder, but there is no evidence that these psychiatric conditions relate to the Veteran's military service. There is no report of depression, anxiety, or sleep problems during the Veteran's service time, and the Veteran reported onset of anxiety, with no sleep disturbance, as occurring in 2003, which was 10 years after his military service, and he did not report depression or sleep problems until June 2006, at which time he reported these problems began about 10 years ago after breaking his ankle while working for USPS, which was after he discharged from the military and unrelated to his military service. Therefore, there is no nexus between military service and current symptoms. The September 2020 VA examiner engaged in a full analysis of the record and issued a comprehensive medical nexus statement that considered the Veteran's entire medical history. The opinion was fully informed, was supported by a thorough explanatory rationale, and is entitled to significant evidentiary weight in this determination. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds significant merit in the VA examiner's explanation that VA treatment records show the onset of his psychiatric symptoms are related to breaking his ankle while working for USPS after separation, rather than due to service. Conversely, The Veteran's therapist, K.S., provided a positive nexus opinion without any rationale and there is no evidence K.S. reviewed the Veteran's claims file. Because K.S.'s opinion has no rationale, the Board assigns the opinion no probative weight. The Board has considered the Veteran's and his wife's lay statements describing his symptoms and linking his disability to service. The Veteran is competent to report his personal experiences of fear, anxiety, sleeplessness and depression and he is competent to report a contemporaneous medical diagnosis. The Veteran's wife is competent to report on witnessing the symptoms of the Veteran's behavior. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, neither the Veteran nor his wife have the medical expertise to competently report on the etiology of his medically complex diagnosed psychiatric disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, their lay statements regarding medical nexus are not competent, probative, or entitled to evidentiary weight in this determination. As the September 2020 VA examiner's opinion is the only probative medical nexus evidence of record, and it weighs against the claim, the benefit-of the doubt rule is not for application, and the Board concludes that the Veteran is not entitled to service connection for an acquired psychiatric disability other than PTSD, to include unspecified depressive disorder and unspecified anxiety disorder on a direct basis, and his appeal is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. PTSD The April 2021 JMPR noted that the August 2020 Board decision improperly relied on the 2012 VA examination to determine there was no valid diagnosis of PTSD based on a stressor related to the fear of hostile military or terrorist activity which could be attributed to active service. Effective July 13, 2010, if a stressor claimed by a veteran is related to that 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 PTSD and that a 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 that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). "[F]ear 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. Id. The AOJ determined that the Veteran's claimed stressor of fearing mine fields while serving in the Persian Gulf could not be verified because the command histories did not document that the Veteran's ship sailed through mine fields while deployed during the Gulf War. However, the Veteran testified during his Board hearing he was told they were entering a war zone and there were possibly mines in the Persian Gulf. While it is not documented the Veteran's ship sailed through mine fields, the definition of fear of hostile military activity only requires being confronted with circumstances that involve the threat of injury. The Board finds the Veteran's lay testimony alone establishes the occurrence of the claimed in-service stressor, the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, and there is no clear and convincing evidence to the contrary. Because the Veteran's claim was pending before the agency of original jurisdiction after August 4, 2014, the claim must be remanded for evaluation under the DSM-5 rating criteria. Therefore, on remand, the Veteran must be afforded a VA addendum opinion (examination if necessary) that utilizes the DSM-5 rating criteria. 2. Insomnia and OSA The Veteran's entitlement to service connection for a sleep disturbance, including insomnia and OSA is inextricably intertwined with the pending service connection claim for PTSD. As such, the outcome of this remand and the pending service connection claim may have an impact on the service connection claim for insomnia and OSA. Therefore, the Board finds that the claim for service connection for sleep disturbance, including insomnia and OSA must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). The matters are REMANDED for the following action: 1. Obtain an addendum VA opinion (schedule examination if necessary) to determine whether the Veteran has a diagnosis of PTSD utilizing the DSM-5 rating criteria. If the Veteran is diagnosed with PTSD, is it at least as likely as not related to his conceded fear of hostile military or terrorist activity? Is the claimed stressor adequate to support a diagnosis of PTSD? If so, are the Veteran's symptoms related to the claimed stressor? R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, 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.