Citation Nr: 22017511 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-00 316A DATE: March 25, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder is granted. FINDING OF FACT The evidence of record establishes a link between the Veteran's acquired psychiatric disorder, to include PTSD and major depressive disorder, and an in-service stressor. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, have been met. 38 U.S.C. §§ 1131, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1980 to November 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Its lengthy procedural history is summarized in a June 2021 Board decision. In relevant part, a hearing was held before the undersigned Veterans Law Judge in August 2020; a transcript has been associated with the record. In the June 2021 Board decision, the Veteran's claim of entitlement to service connection for depression was reopened, and service connection claims for PTSD and major depressive disorder were combined into one issue on appeal. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (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). The June 2021 Board decision remanded the claim for additional development. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. Service connection for an acquired psychiatric disorder has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (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. See 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). A brief description of the Veteran's reported stressors is below. The Veteran asserts that his current psychiatric conditions are a direct result of his experiences during active-duty service. The Veteran was first diagnosed with depression in a July 1999 medical record. Additionally, the record reflects that the Veteran was diagnosed with PTSD in a January 2018 VA medical opinion. His current diagnoses of PTSD and major depressive disorder were confirmed in a July 2021 VA examination. The first element of service connection, a current disability, has been met. The Veteran asserts that his PTSD and major depressive disorder stem from three specific events while he was stationed on active duty in Germany. First, the Veteran recalls driving to pick his family up from the airport in Germany when he witnessed a motorcycle accident involving two individuals. The Veteran reported seeing the two people laying in the road in a significant amount of blood with one of the individuals being dismembered. The Veteran reported immediately after witnessing the accident he began having trouble sleeping, enjoying time with his family, and resulted in the Veteran seeking mental health treatment. The Veteran recalls a second instance of being on an artillery vehicle when a motor was dropped, hitting a "cheese charger" which then created a spark. This resulted in a burst of flames which ignited the vehicle. The Veteran stated he and the other service members jumped from the vehicle and ran, fearing for their lives as the truck was filled with live rounds that, if kindled, could have killed the Veteran. Finally, the Veteran recalls being on guard duty at the border when a car with three German men approached. The Veteran watched as they approached with their lights on, turned the lights off, and in fear for his life, the Veteran loaded his rifle. The German men saw additional service members and left without opening fire. The Veteran reports having nightmares and will wake up "shaking and swinging" as a result. The Veteran's military personnel records show he was stationed in Germany from about September 1981 to September 1984. His DD 214 shows he had 2 years and 10 months of foreign service. His military occupational specialty was "IND fire infantry" and he was certified as a marksman with an M-16 rifle. The Veteran's record supports that he was in Germany during service and specifically during the times he reported experiencing the stressors as recounted above. The Veteran claims he was first diagnosed with depression in service and subsequently treated with antidepressant medication. However, while the Veteran's military personnel records were associated with the file, his service treatment records (STRs) could not be located, other than his initial entrance examination from December 1979 which is silent for any mental health conditions. A formal finding of unavailability of STRs was sent to the Veteran on September 1, 2021. When there is evidence that a Veteran's service personnel records have been lost or destroyed, as is the case here, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The Veteran has been seeking mental health treatment through the VA since October 2006. In a May 2011 mental health note, the Veteran asserted he was experiencing nightmares of the motorcycle accident he witnessed in service. In a June 2011 psychology consult, he further reported being in an artillery gunnery unit when an explosive ignited. This still causes him stress when the Veteran thinks about the incident. In March 2012, the Veteran submitted a statement in support of his claim detailing the events of his reported stressors. He submitted the same recount in a November 2016 statement in support of his claim for PTSD. In his January 2018 VA Form 9, he again recounted the same three stressors and stated due to these instances, he sought mental health care in service. He again submitted the same recount of his stressors in an August 2018 statement in support of his claim for PTSD. In December 2018, the Veteran submitted a statement from his late wife and his daughter. The statement from his late wife asserts that the Veteran has had a number of "emotional struggles" since his time in Germany. She recounted instances after his service in which the Veteran would stay awake crying as he was afraid to go to sleep. The Veteran's daughter recounts moving to Germany with her family at age 7. She stated she remembers the Veteran waking up in the middle of the night shaking and crying. In summary, both statements indicate there was a shift in the Veteran's behavior prior to service and then while serving. The Veteran also submitted a statement on his own behalf in December 2018 in which he asserts he has been receiving mental health treatment through the VA for over 20 years. He still has dreams about the motorcycle accident he witnessed in service and the explosion on the artillery truck. During the August 2020 hearing the Veteran again recounted the same stressor as originally reported in his March 2012 statement. He again stated he has nightmares regarding the motorcycle accident, the explosion on the truck, and the encounter with the German men. He also stated his symptoms began in service and have continued to the present time. This assertion is supported by his late wife and daughter's December 2018 statement regarding an obvious mental shift in the Veteran prior to service and in service. In September 2020 two of the Veteran's fellow service members and his son submitted statements on his behalf. All of the statements indicate the Veteran underwent a shift in behavior over the years. Both his fellow servicemember and his son indicate the Veteran became more reserved and isolated. The Veteran no longer played sports with his friends and would shelter himself in his home. The Veteran's son stated his father would not sleep, have mood swings, depression, anxiety, violent outbursts, panic attack, issues with memory, and nightmares. The Veteran's STRs cannot be reviewed to corroborate the Veteran's assertions of mental health treatment in service as they have not been located and associated with the record. However, the Veteran is competent to report on the experiences he had in service to include seeing a motorcycle accident, the explosion on the artillery truck, and the situation with the German men. 38 C.F.R. § 3.159 (a)(2). The Veteran's military personnel records show he was stationed in Germany from 1981 to 1984 and his MOS supports his position on the artillery truck. His wife, children, and fellow service members all recount a shift in the Veteran's behavior from a more interactive person to an isolated individual. Additionally, the Veteran reported to his VA mental health providers that he experiences nightmares regarding his reported stressors prior to filing this claim. White v. Illinois, 502 U.S. 346, 356 (1992) (Statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment). As the Veteran has consistently reported these occurrences for the entirety of the period on appeal, and even prior, and applying a heightened benefit of the doubt in the Veteran's favor as required, the Board finds no reason to doubt his credibility. Russo; O'Hare; Washington. The second element of service connection has been met. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The question remaining before the Board is whether the Veteran's current PTSD and major depressive disorder are a result of his active-duty service. The Veteran underwent a VA examination for his PTSD and major depressive disorder in July 2021. The examiner noted both a current diagnosis of PTSD and major depressive disorder. The Veteran reported a depressed mood, anxiety, and chronic sleep impairment. The Veteran provided two nexus opinions. First, the examiner stated the Veteran's major depressive disorder was less likely than not related to his active-duty service to include the three asserted stressors experienced in Germany. The examiner reasoned that the Veteran's major depressive disorder was not diagnosed until 2017 and is a result of his wife's passing. He stated specifically that the Veteran's major depressive disorder was related to, "the loss of [the Veteran's] wife and his sense of loss of social support since she passed." However, this is an inaccurate summation of the facts as provided by both the record and the Veteran. The Veteran first filed a claim for depression in June 1999 and in a June 1999 VA examination the examiner diagnosed the Veteran with depression. This claim and diagnosis came nearly 19 years prior to his wife's passing. Additionally, the Veteran asserted he has been seeking mental health care since that time. His VA treatment records show he has been receiving mental health care since at least October 2006. Diagnosis of major depressive disorder is present in treatment records at least as early as May 2013. The Veteran's depression has clearly been present long before the passing of the Veteran's wife. As the July 2021 VA opinion regarding the etiology of the Veteran's depression was based on an inaccurate summation of the facts as presented, it is afforded no probative weight in this matter. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The June 2021 examiner also provided an opinion regarding the Veteran's PTSD. The examiner stated, "the claimed condition was at least as likely as not...incurred in or caused by the claimed in-service injury, event, or illness." The examiner reasoned that the Veteran's report of his in-service stressor during the examination was consistent with the entirety of the record. He was also receiving mental health treatment for PTSD through the VA at the time of examination. Furthermore, during the examination the Veteran endorsed a number of symptoms to include, "recurrent, involuntary, and intrusive distressing memories of the traumatic events; intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic events," and "marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s)." As a result, the examiner indicated his current PTSD diagnosis was a result of his reported in-service stressors. The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As a result, the third element of service connection has been met. Based on the foregoing, the Board finds that the competent and credible evidence persuasively weighs in favor of finding that service connection for an acquired psychiatric disability to include PTSD and major depressive disorder is warranted. The claim is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.