Citation Nr: 22018950 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 19-22 479A DATE: March 30, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran's depressive disorder and PTSD are due to stressors experienced during service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and PTSD have been met. 38 U.S.C. §§ 1110, 1111, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1972 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2021. A transcript of the hearing is associated with the claims file. As an initial matter, the Board finds new and material evidence is not needed because the Veteran's February 2013 rating decision is not final. This case was originally treated as a reopening under 38 C.F.R. § 3.156 (a), requiring a determination of whether new and material evidence was submitted. However, additional military personnel records, to include records relating to an incident with marijuana, were added to the record in 2014. These documents are considered relevant service department records which existed but were not associated with the file when the VA first decided the claim in February 2013 or considered in the subsequent December 2014 rating decision. Under 38 C.F.R. § 3.156 (c)(1)(ii), VA will reconsider a previously denied claim de novo if service department records, originally requested before the RO made its decision, are received any time after such decision. Therefore, this case is a reconsideration under 38 C.F.R. § 3.156 (c), and the Veteran's claim will be reconsidered as opposed to requiring the submission of new and material evidence. Service Connection Generally, to establish service connection a 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304 (f), which take precedence over the general requirements for establishing service connection in 38 C.F.R. § 3.303. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Establishment of service connection for PTSD 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). Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. If a stressor claimed by a Veteran is related to the 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 the 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 the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear 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. 75 Fed. Reg. 39843 (July 13, 2010), as amended by 75 Fed. Reg. 41092 (July 15, 2010). The rule has no geographic requirement and is not limited to service in a combat zone or on land. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and PTSD. The Veteran has current diagnoses of depressive disorder and PTSD. He claims his mental health disorders are caused by two specific in-service stressors. In this case, there is a question as to whether the Veteran's mental health disorders preexisted his active service from September 1972 to August 1975. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In a February 2018 VA opinion, the examiner stated the Veteran's PTSD is less likely than not related to service and is "due to both his childhood experiences of abuse and heightened by his military stressor experiences." In March 2018, the VA obtained another opinion from the same examiner to specifically determine whether the Veteran's mental health disorders existed prior to service. The examiner again stated the Veteran's mental health disorders stemmed from both childhood trauma and in-service stressors. She further stated his childhood trauma "would have contributed to a fertile foundation for the traumatic events experienced while in the military to further aggravate and build on problems related to PTSD." The Veteran's August 1972 entrance examination is absent of any notations of neurological or psychiatric conditions. Additionally, the evidence is at least in equipoise as to whether any mental health disorder manifested during service. The Veteran contends his mental health disorder symptoms began during service, after his two stressors occurred. Military personnel records show the Veteran had multiple behavioral incidents after his reported stressors, to include unauthorized absences, low marks for professional performance, citations for appearance, and marijuana use. Therefore, with respect to any mental health disorders, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Service treatment records show the Veteran did not have any mental health disorders noted on any examinations. As noted above, the Veteran's first indication of mental health disorder symptoms occurred after his first claimed stressor, which was in 1973. A report from November 1972 indicated the Veteran's performance in training was good, and provided examples, such as being cooperative, respectful toward military authority and commanding officers, and a positive attitude toward the Navy. This report did not include any indications that the Veteran was disobedient, depressed, or unreliable. It was not until August 1973 that the Veteran started showing behavioral problems. The most competent and credible evidence of record illustrates that the Veteran's mental health disorder did not clearly and unmistakably preexist service. Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). The Veteran reports two in-service stressors. The first occurred in January 1973 when he entered a new unit. He was given an assignment to chip paint off of scaffolding during a windy day, but went to sick bay because of his fear of heights. The servicemen that did do the assignment had an accident, and the Veteran believes they may have died or been paralyzed because they never returned to the unit. The other servicemen in the unit blamed the Veteran for the accident. This was the beginning of what he described at his July 2021 hearing as "microtraumas." His second stressor occurred in 1974. The Veteran stated he was assigned to a task that required him to go into a sealed off area that may have been filled with toxic gas without any protective equipment. This led to an altercation with his superiors and punishment for failure to complete the task. Military personnel records from 1974 until separation show the Veteran had multiple behavioral incidents, including unauthorized absences, low marks for professional performance, issues with authority, citations for appearance, and marijuana use. Thus, the Board finds that the Veteran suffered an in-service stressor because his reports are sufficiently corroborated by his behavior changes, and service treatment records. The Veteran was afforded VA examinations in December 2012, January 2018, February 2018, and March 2018. The Veteran also submitted a private opinion from Dr. W.H. in September 2017. The December 2012 examiner opined the Veteran's mental health disorders were less likely than not caused by his in-service stressors. He explained that service records were silent for any "discernible markers for anxiety." He also noted the Veteran's VA treatment records from 2007 indicated his mental health disorders were caused by the death of his son in 2000. However, the January, February, and March 2018 VA examinations all indicate the Veteran's in-service stressors at least contributed to his current mental health disorders. Additionally, Dr. W.H. opined in his September 2017 private opinion that the Veteran's mental health disorders are at least as likely as not due to service. He explained the Veteran first exhibited symptoms in service, after experiencing his first in-service stressor. This included his behavioral changes noted in his service personnel records. He also addressed the statement from VA treatment records in 2007 that indicated his mental health disorders were caused by his son's death in 2000. In addition to his in-service symptoms, the examiner explained the Veteran made a "suicidal gesture" in 1985 and had a history of substance abuse well before his son's death in 2000. There is unfavorable medical opinion evidence against the claim and favorable medical opinion evidence in favor of the claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2020). Resolving all reasonable doubt in his favor, the Veteran's mental health disorders are related to his service. Accordingly, service connection for an acquired psychiatric disorder, to include depressive disorder and PTSD is warranted. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.