Citation Nr: 22044937 Decision Date: 08/08/22 Archive Date: 08/08/22 DOCKET NO. 17-04 923A DATE: August 8, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder, including other specified trauma and stressor-related disorder rather than posttraumatic stress disorder (PTSD) and as secondary to service-connected disability, is granted. FINDINGS OF FACT 1. The Veteran is in receipt of service connection for lung cancer, status post lobectomy, effective from March 2016. 2. It is just as likely as not his acquired psychiatric disorder more specifically, his other specified trauma and stressor-related disorder, is attributable to his military service and/or a service-connected disability. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for other specified trauma and stressor-related disorder. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from May 1972 to February 1974. He and his spouse testified in support of this claim during a February 2020 hearing at the local Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ), before the undersigned Veterans Law Judge of this Board, in other words at a Travel Board hearing. A transcript of the proceeding is of record. After the hearing, the Veteran was given an additional 90 days to submit more evidence and/or argument in support of his claim. In June 2020 and again in August 2021, the Board remanded this claim back to the RO (AOJ) for further development and consideration that especially included trying to verify the Veteran's alleged stressors and for a VA examination and medical nexus opinion concerning the origin of this claimed disability particularly in relation to his military service. There since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) when the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). However, there are specific requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD, in particular, requires: (1) medical evidence diagnosing the condition in accordance with 38C.F.R. §4.125(a), meaning utilizing and in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and the in-service stressor. See 38 C.F.R. § 3.304(f). The current version of the DSM is the Fifth Edition (DSM-5), and a valid DSM-5 diagnosis therefore is required to warrant compensation for PTSD but also for any other mental disorder for that matter. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020), aff'd sub nom. Martinez-Bodon v. McDonough, 28 F.4th 1241 (Fed. Cir. 2022). As the Board also alluded to when previously remanding this claim, there are times when independent corroboration of a claimed stressor is not required, such as when the incident in question occurred in combat or in response to the Veteran's fear of hostile military or terrorist activity, or when he was a prisoner of war (POW) or is alleging he was personally assaulted or suffered military sexual trauma (MST). See 38 C.F.R. § 3.304 (f)(2), (3), (4) and (5). If a stressor claimed by a Veteran is related to his fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms 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, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). Hostile criminal actions, such as harassment and personal assault stressors alleged by a Veteran are contemplated under the provisions of § 3.304(f)(5), which addresses evidentiary considerations where PTSD is alleged to have resulted from an in-service personal assault. Acevedo v. Shinseki, 25 Vet. App. 286 (2012). If a PTSD claim is based on in-service personal assault, then evidence from sources other than a Veteran's service records may corroborate the account of the stressor incident. Examples of such evidence include but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests (in the case of females) or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304 (f)(5). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. In cases involving personal assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107 (b) and 38 C.F.R. § 3.102. YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) clarified in YR and Patton that the general rule discussed in Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996), that after-the-fact medical nexus evidence cannot establish the occurrence of the claimed in-service stressor, does not apply to PTSD claims based on personal or sexual assault. See also Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (reiterating that, when a claim is predicated on personal or sexual assault, a post-service examination of a Veteran may be used to establish the occurrence of the claimed stressor). Courts have recognized that, since sexual assault is an extremely personal and sensitive issue, many incidents are not officially reported until years later. See Menegassi at 1383; see also Bradford v. Nicholson, 20 Vet. App. 200 (2006). Consider also however that service connection is permissible for a disorder (any disorder, so not just PTSD), initially diagnosed after service if the evidence, including that pertinent to service, establishes the disorder was incurred in service. See 38 C.F.R. § 3.303(d). As well, according to 38 C.F.R. § 3.310, service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability although in the latter instance compensation is limited to the disability specifically owing to the aggravation. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Entitlement to service connection for an acquired psychiatric disorder, including but not limited to PTSD The Veteran served on the USS Sacramento; he did not however engage in combat. Nevertheless, when twice remanding this claim, the Board directed the RO (AOJ) to try and corroborate or verify his alleged stressors in service, including seeing rockets explode off the Coast of Vietnam, a rocket attack on the USS Sacramento, witnessing the near death of a fellow servicemember, and being chased by locals with knives while in the Philippines (the Board's remand mistakenly refers to the knife incident as occurring in Vietnam instead of in the Philippines). In any event, VA determined the USS Sacramento navigated within the 12-nautical miles radius off the Coast of Vietnam to in turn warrant presuming the Veteran was exposed to the dioxin in Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e); see also Procopio v. Wilkie, 913 F.3d 1371 (2019). However, his claim is not necessarily predicated on the notion that his mental disorder is related to or the result of that conceded exposure, and a Records Research Response to a VA request for verification of his other alleged stressors reveals that no evidence was located tending to support their occurrence. Moreover, he has not contended that he filed a police report or other type of incident report for the alleged incident in the Philippines; in other words, he has not contended that there would be any available records tending to verify or corroborate his claimed Philippine stressor. As well, there are no service treatment records (STRs) or other records tending to corroborate any of his claimed stressors. But, again, that is not ultimately determinative of this claim. The Veteran also has asserted that he arrived on the USS Newport News shortly after an explosion and resultantly had to walk between dead bodies. The Board acknowledges there was indeed an explosion on the USS Newport News on October 1, 1972; however, the evidence does not support the Veteran's contention that he was onboard the ship shortly after the explosion and witnessed dead bodies. There are no military records or citations placing him onboard the USS Newport News. Moreover, a Defense Personnel Records Information Retrieval System (DPRIS) report shows that deck logs reflect that the only U. S. Navy ship to assist at the time of the explosion was the USS Davidson (which sent medical personnel), but which was not the Veteran's ship. Instead, as noted, he was assigned to the USS Sacramento. Still further, an Abstract of Service and Medical History for him shows that he had duty about the USS Sacramento from October 26, 1972, to February 12, 1974, which would not place him on the USS Sacramento until three weeks after the October 1, 1972, USS Newport News explosion. The Veteran separated from service in February 1974. His June 1975 Report of Medical History for Reserve purposes indicates he denied nervous trouble of any sort, denied frequent trouble sleeping, and denied depression or excessive worry. His January 1977 Report of Medical History for annual purposes reflects that he did not know whether he had nervous trouble of any sort. There is no evidence of an acquired psychiatric disorder until more than four decades after the Veteran's separation from service. Notably, PTSD screenings in 2014 and 2015 were negative. That notwithstanding, a December 28, 2015, VA record shows the Veteran was interested in lung cancer screening (he had been a smoker for 40 years), but he also reported having nightmares. On January 19, 2016, he presented for the lung cancer screening with a left hilar nodule. A February 2016 VA microscopic examination confirmed a left infra-hilar mass that was a carcinoid tumor. A March 24, 2016, record shows he had subacute worsening nightmares; they were noted as "started and worsening for the past several months." It appears that the onset or worsening of his nightmares coincides approximately with his cancer screening and consequent lung carcinoid tumor diagnosis. This is significant, as well as that these assertions of nightmares were made about a year before filing his claim for service connection for an acquired psychiatric disorder. Courts have recognized how medical history recounted during medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997). That also was when he did not have any incentive financial or otherwise, to provide anything other than factually accurate information, which also tends to add to his credibility. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant's testimony) An April 2016 VA record notes the Veteran had back pain, but also an additional stressor of impending lung surgery and other health problems that had just recently come to light. Psychologically, he denied significant symptoms of depressive mood, anxiety/PTSD, or anger/irritability. He did, however, report feeling a great deal of stress regarding his health and the upcoming surgery for his lung cancer. On April 18, 2016, the Veteran had a left thoracotomy and left lower lobectomy for atypical carcinoid. A December 2016 VA clinical record indicates he had anxiety and "[s]till worries sometimes about his medical conditions." A January 2017 Oasis Counseling record reflects the Veteran's assertions that, in 2016, in anticipation of his lung surgery, he did not think he would live, so he sold his cars, turned over his football team to another coach, and made a will. He also stated that, since his surgery, he feels hopeless, helpless, depressed, and worried. In contrast, he reported that, before his surgery, he was continuously active, had his own business, coached football, and had a full live with a hobby. However, after his surgery, his activities are lessened, leaving him discouraged, sad, and frustrated. The Oasis Counseling record also notes that his wife remarked that, since his surgery, he has a hard time sleeping, has night terrors, and screams. This mental health counselor diagnosed PTSD due to "a history of military trauma related experiences." But the Board finds her opinion lacks probative value as it does not have adequate rationale, which is where most of the probative value of a medical opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). It also appears that clinician's opinion was based mostly, if not entirely, on information the Veteran had provided on a self-reported questionnaire without verification of his stressors and failing to discuss the trauma of his surgery. That said, mere reliance on a Veteran's self-recounted history is not reason enough, alone, to discount the probative value of an opinion relying on that history, unless it is shown the reported history is not credible. See Coburn v. Nicholson, 19 Vet. App. 427 (2006); Kowalski v. Nicholson, 19 Vet. App. 171 (2005). And, here, the Board finds that the Veteran's statements, and those of his wife, regarding the onset of his nightmares/sleep disturbances and the unfortunate circumstances of his lung cancer surgery and everything surrounding it and since, including his mental outlook, are probative evidence supporting a correlation between that now service-connected disability and his mental disorder. In 2017, when providing statements in support of his claim for PTSD, the Veteran asserted that the trauma of his lung surgery had caused him to re-live traumatic events (so "stressors") that had occurred during his military service. A March 2017 Disability Benefits Questionnaire (DBQ) shows the Veteran does not meet the DSM-5 criteria for PTSD, but that he at least as likely as not meets the diagnostic criteria instead for Other Specified Trauma and Stressor Related Disorder caused by service-related trauma. Since, however, that opinion was based on claimed stressors that had not been independently verified, the Board determined that it was inadequate to grant this claim and resultantly since, as mentioned, twice remanded this claim back to the RO (AOJ) for this needed independent verification or a determination that a stressor being alleged is a type that conversely does not need to be independently corroborated. In a September 2020 statement (on VA Form 21-0781a), the Veteran asserted that he had traumatic incidents in service that were always a "bother and nightmare" but he blames his current nightmares on the "trauma of lung surgery" that seems to have "opened Pandora's Box" in his brain. In remanding his claim for service connection for an acquired psychiatric disorder, the Board also remanded the Veteran's claim for service connection for lung cancer. And in a February 2021 rating decision since issued, on remand, the RO granted service connection for his lung cancer, status-post lobectomy associated with herbicide exposure, with a 100 percent rating for it retroactively effective from March 8, 2016. In a March 2021 statement, the Veteran related that, "after a traumatic incident 5 years ago I started having substantial nightmares." Again, this timeframe coincides with his lung cancer diagnosis and consequent surgery. Moreover, a July 2021 VA note (Psychology Intern, T. L. M.), in pertinent part, contains the following medical opinion: Veteran reported experiencing several traumas throughout his life. He noted responding to a ship that had an explosion is the most difficult for him. Veteran described experiencing symptoms of PTSD after he had surgery on his lungs. Veteran reported the surgery activated his fight or flight response and triggered his memories from military service. Veteran noted experiencing distressing nightmares, hypervigilance, avoidance, and irritability. Veteran's prolonged avoidance along with a lung surgery from four years ago seems to have trigger latent PTSD symptoms. The Board again however points out that the alleged stressor of responding to a ship explosion has not been verified, and the Veteran's service dates weigh against that incident occurring in terms of him personally assisting after the explosion and witnessing dead bodies. Nevertheless, the Board finds it notable that he reported that his lung surgery also had an impact on his mental health, and that he "described experiencing symptoms of PTSD after he had surgery on his lungs". A March 2022 DBQ adds, in pertinent part, as follows: [H]e started experiencing nightmares related to fearing for his life shortly after his surgery to remove a tumor from his lung in 2016. He reported that he had complications during surgery and worried about survival after the surgery. He stated that 'recovery was very difficult'. The report also explains that the Veteran reported that "he did not experience mental health concerns until 2016, when he had a surgery that triggered his feelings of vulnerability and nightmares related to military service." The examiner found it at least as likely as not (50 percent or greater probability) the Veteran's diagnosed mental disorder (Other Specified Trauma and Stressor-Related Disorder) is a result of an in-service stressor related event or other event or injury during military service. Since, however, the alleged stressors in service have not been verified, and have not been shown to be consistent with the circumstances, conditions, and hardships of his service, they cannot be the basis for etiologically linking his current mental disorder to his service. 38 U.S.C. § 1154(a). In sum, none of the clinical opinions alone provide sufficient evidence to warrant service connection for an acquired psychiatric disorder as directly related to the Veteran's service. But the analysis does not end there since the record as a whole nonetheless supports finding that his current acquired psychiatric disorder also at least partly was triggered by his now service-connected lung cancer, so is secondarily related to his service. Thus, regardless of whether he experienced the alleged trauma in service, his post-service lung cancer surgery and everything surrounding that had an adverse effect on his mental health, in turn resulting in a diagnosis of an acquired psychiatric disorder namely, of Other Specified Trauma and Stressor-Related Disorder if not also of PTSD. As explained, service connection may be granted on this secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). And, in deciding appeals, the Board must consider all potential bases of entitlement. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If, instead, there is at least an "approximate" (meaning nearly equal) balance of evidence for versus against the claim, the claim conversely must be granted. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. In Alemany, the Court explained that "absolute" etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology. Rather, this need only be an "as likely as not" proposition which it is in this instance when resolving all reasonable doubt in the Veteran's favor. Hence, service connection is granted for Other Specified Trauma and Stressor-Related Disorder. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.