Citation Nr: 22018394 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-01 157 DATE: March 29, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD) and depression, for purposes of accrued benefits, is granted. FINDING OF FACT The Veteran had an acquired psychiatric disorder as a result of in-service incidents. CONCLUSION OF LAW The Veteran's acquired psychiatric disorder is due to events that occurred in service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§, 3.303(b), 3.307 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service in the United States Army from June 1963 to May 1966. He died in December 2019. In April 2020, the Veteran's surviving spouse was properly substituted as the appellant for purposes of accrued benefits. This matter comes before the Board of Veterans' Appeals upon appeal from February and October 2014 rating decisions of the Department of Veterans Affairs (VA) Regional office (RO). The Veteran's disability claim for posttraumatic stress disorder was received on April 5, 2013. The appellant as well as the Veteran's daughter and granddaughter testified before the undersigned Veterans Law Judge in November 2021. The transcript of the hearing has been associated with the electronic record. Service Connection Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted on a presumptive basis for certain chronic diseases, including psychoses, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2015). The Veteran has not been diagnosed as having any psychoses within his first post-service year or thereafter and is therefore not entitled to presumptive service connection. A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court); however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In adjudicating these claims, the Board must assess the competency and credibility of the veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994). Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and depression, for purposes of accrued benefits The appellant maintains that the Veteran had an acquired psychiatric disorder which had its onset in service. Service treatment records (STRs) include the Veteran's enlistment and separation Reports of Medical History and clinical examinations. There were no notes regarding an acquired psychiatric disorder in these documents or elsewhere in the STRs. A VA treatment record in May 2013 reflects the Veteran's statement regarding his brief loss of consciousness when he was hit in the head with a tank hatch in service causing him ongoing dizziness and memory deficits for a few weeks. In June 2013, the Veteran underwent a neuropsychiatric evaluation after reporting 4 years of memory decline and syncopal episodes in the past three months. He was noted to have a bland, blunt affect, and although he denied being irritable, his wife and daughters reported verbal outbursts every other day. The Veteran admitted to auditory hallucinations. His wife noted the incident with a plate glass window and suicide attempt with stabbing himself in the thigh shortly after the Veteran's separation from service. Neuropsychological testing indicated marked functional decline associated with hallucinations over the last 2 years. Testing revealed deficits in visuospatial skills, impulsivity, and attention to detail, with normal scores in auditory and visual attention verbal fluency, thought process and delayed verbal and visual memory. The neuropsychiatrist diagnosed moderate dementia. There was a positive depression screen suggestive of moderate depression; however, a significant mood disorder was not appreciated. The CT scan from April 2013 showed a decrease in brain parenchyma and multifocal infarcts. In July 2013, the Veteran underwent an initial VA psychiatric assessment. The Veteran's history included evaluation for dementia in February 2013, his military occupational specialty of heavy equipment operator, no combat, and service mainly in Germany. The Veteran's wife advised the psychiatrist that upon his return from service the Veteran immediately exhibited bizarre behaviors including running through a plate glass window and cutting himself on his thigh with a knife. Neuropsychiatric testing provided a diagnosis of vascular dementia; however, psychiatric evaluation was recommended to address the Veteran's hostile and depressed mood. The Veteran admitted to being worried "a little bit" and his wife described the Veteran as being agitated the day before with raised voice after returning from his part-time job. The Veteran admitted to hearing people talking at times and the Veteran's wife noted that he seemed to talk to people who are not present since his return from Germany in his 20s. He became progressively more introverted and never had many friends from that point on. The Veteran has recently had speech and language problems and although he had not gotten lost while driving, he was missing for unaccounted periods of time and his hygiene had deteriorated. His mental status exam reflected appropriate appearance and eye contact, with a subdued and relaxed demeanor, minimal nervousness, with blunted affect, normal speech, no suicidal or homicidal ideation or delusions, with occasional auditory hallucinations, and short-term memory deficits. Accordingly, the Veteran met the first two requirements for service connection with evidence of a current disability and an inservice incident according to the Veteran's disclosure to a VA treating physician. See Davidson v. Shinseki, 581 F.3d 1313. In May 2014, the Veteran was evaluated by a private licensed psychologist who diagnosed him with PTSD after a clinical interview with him and with his wife. He opined that the PTSD was triggered by the trauma the Veteran experienced in Germany. The psychologist noted that the head trauma that occurred with the unsecured tank hatch was consistent with a condition productive of PTSD. He further noted that the Veteran has experienced depression and anxiety, sleep disturbance with bad dreams and significant memory problems, few friends and diminished motivation. He was having occasional suicidal thoughts. His wife reported jerking movement in his sleep. The appellant provided a lay statement in June 2014 detailing her observations of the Veteran since 1959 when the two dated in high school. She noted that in high school he was the "life of the party," a popular football player and very active in church activities. His first six months in the Army seemed to agree with him, but upon his return from Germany, he did a "180, mentally, physically and emotionally.' His hygiene was poor, and he had terrible headaches. He told her about an unlatched tank hatch hitting him on the top of the head and his being dazed and in terrible pain. He had self-medicated with "BCs, Goody's and Cokes" ever since. At his mother's house, his family all ran after him when someone slammed a door causing the Veteran to run through a plate glass picture window and continue running up the street. The Veteran later explaining that he thought someone was shooting at him. They took him to a hospital in Charlotte, North Carolina where he was given an injection to calm him down and "kept him for a while." The Veteran told her that he had tried to commit suicide when she noticed a significant cut on his wrist. They married in 1966, after his separation from service, and he worked but was never the outgoing person he had been before service, never smiled, was depressed, anti-social and continued to get worse as the years went by. He was not able to sleep, isolated himself from everyone, and had anxiety attacks and night sweats since his time in service. The Veteran's daughter, MM, provided a statement in June 2014 noting that her father was always somewhat detached and had become completely isolated more recently. While he was never outgoing, he would participate minimally in family dinners. He was a good provider, but she never could get close to him; he never smiled or demonstrated happiness and was emotionless. She commented on a worsening of his memory more recently. His daughter TJ noted that her father was initially quiet but approachable and they enjoyed going fishing with him when she was younger. Eventually he stopped going fishing and became withdrawn and sad. She noticed a continued slipping away and although his grandson was captain of his football team, the Veteran never attended any of his games. Barr v. Nicholson, 21 Vet. App. 303, Layno v. Brown, 6 Vet. App. 465. Beginning in September 2014, VA treatment records reflect that the Veteran underwent cognitive therapy for depression and was prescribed an antidepressant. In June 2016, a second private physician submitted a statement diagnosing chronic severe PTSD due to service trauma in Germany. The Veteran described experiencing great fear as he thought he would be killed by mistake after witnessing a soldier being shot accidentally in addition to the incidents with the loose tank hatch. As a result of these incidents, the Veteran suffered from depression, anxiety, and panic attacks with an exaggerated startle response, chronic sleep impairment, irritability, withdrawal, alcohol use as medication, and difficulty maintaining social and relationships. In an April 2016 VA visit, the Veteran sought psychiatric treatment for insomnia, anhedonia, lack of energy, poor concentration, and appetite. His mental status examination showed a depressed, flat affect without suicidal ideation and the Veteran admitted to depressive symptoms of sadness, social isolation, and lack of motivation. It was noted that the Veteran had been diagnosed with two strokes in 2013. The Veteran passed away from complications of renal cancer in December 2019. At the Board hearing in November 2021, the appellant testified to her recollection of noticing the Veteran's personality changes while pregnant with their oldest daughter the year that he left service. She prayed and shared his thoughts of committing suicide with the Veteran's mother. They did not seek treatment with the VA as they were unaware that he could get treatment. The Veteran's daughter TJ and her daughter testified to their recollection of their father and grandfather being startled when a car backfired in the neighborhood and seeing the Veteran diving under the coffee table as well as his nonparticipation in even family gatherings. While growing up his daughter noticed that he always declined to participate in events including going on vacation with them because there were too many people present. In addition, she recalled that her father drank heavily all of her life and that he attempted to hide his liquor bottles. He never discussed his military service with her. The Board notes that four family members have provided statements and/or testimony regarding the Veteran's continuous symptoms of flat affect, difficulty with family relationships, social isolation, intermittent suicidal ideation, hypervigilance, and drinking to self-medicate since service through the time of his claim. See 38 C.F.R. § 3.303(b). Further, these symptoms pre-existed the functional deficits documented by neuropsychiatric testing in 2013. All of their testimony is consistent, credible, and persuasive. The Veteran's surviving spouse corroborated the statements that the Veteran made to several mental health providers regarding his head trauma from an unsecured tank hatch. Although his daughters and granddaughters note that he would not discuss his military time with them, the Veteran did discuss his fear of death caused by two accidental gun misfires in service with mental health providers. A private psychiatrist and psychologist each provided opinions with rationales that related the Veteran's acquired psychiatric disorder to his service. There are no nexus opinions which contradict those of these two mental health providers and the Board finds the opinions to be both medically competent and entitled to substantial probative weight. The Board recognizes that the treatment for the Veteran's acquired psychiatric disorder began years after his separation from service however, the Veteran and his family are competent to describe symptoms ascertainable by a layperson. See Barr 21 Vet. App. at 305. Their statements regarding symptoms immediately after separation from service until care was initiated at the VA are consistent and highly credible. Accordingly, resolving all reasonable doubt in favor of the appellant, the claim for service connection for the Veteran's acquired psychiatric disorder, to include PTSD and depression, for purposes of accrued benefits, is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adams Hill, 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.