Citation Nr: 22040175 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-50 940 DATE: July 13, 2022 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and unspecified depressive disorder, is granted. FINDING OF FACT The Veteran's current acquired psychiatric disorder, to include PTSD and unspecified depressive disorder, began in, and has continued since, active service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and unspecified depressive disorder, are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to March 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection generally requires evidence showing: (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 disability incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The law further provides that the burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Importantly, the VA Office of the General Counsel determined that VA must show by clear and unmistakable evidence that there is a pre-existing disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. Service connection for an acquired psychiatric disorder, to include PTSD and unspecified depressive disorder. The Veteran contends service connection for an acquired psychiatric disorder. In this regard, the Veteran submitted statements from his wife, daughter, and close friend. They reported that the Veteran is paranoic, hypervigilant, and easily startled, and does not trust anyone. See 4/8/2016 Buddy / Lay Statement. At the outset, post-service VA treatment records showed that the Veteran was diagnosed with PTSD and unspecified depressive disorder. See 9/6/2018 CAPRI, at pages 78 and 131. As such, the first element of service connection is established. A diagnosis of PTSD for compensation purposes must be established in accordance with 38 C.F.R. § 4.125(a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-5). VA has determined that the DSM-5 applies to claims filed or pending before the Agency of Original Jurisdiction, on or after August 4, 2014. 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As the Veteran's appeal was certified to the Board in November 2018, the DSM-5 applies here. The competent evidence reflect that the Veteran meets the first criterion of service connection for PTSD. See 9/6/2018 CAPRI, at page 131. The Veteran's authorized representative argued that the Veteran is entitled to the presumption of soundness. See 12/7/2021 Hearing Transcript, at page 3. In this regard, the record shows that the entrance examination is silent for a diagnosis of an acquired psychiatric disorder. See 9/21/2010 STR Medical, at page 31. Therefore, there is no evidence of an acquired psychiatric disorder being identified at the entrance examination. 38 C.F.R. § 3.304(b). As such, he is presumed sound. As to the second element of service connection, service treatment records showed that the Veteran reported "frequent trouble sleeping" and "nervous trouble of any sort." In addition, the record showed that the Veteran was prescribed Valium medication for nervousness. See 9/21/2010 STR Medical, at pages 22 and 42. Also, during the December 2021 Board hearing, the Veteran testified that during service, he expressed feeling nervous and anxious because he was aware that he was going to be sent to Vietnam. Additionally, he testified about incidents occurred in-service, such as: (1) he witnessed a soldier being seriously injured; (2) he witnessed the deaths of numerous American and Vietnamese soldiers; (3) he witnessed a fellow soldier killed in a helicopter flight in September of 1970; and (4) he experienced several explosions where he woke up under his bunk. Further, the Veteran testified that almost exactly a year before his enlistment, one of his friends was killed in Vietnam and that made him nervous. See 4/8/2016 VA 21-0781; see also 12/7/2021 Hearing Transcript, at pages 3-7, 9, and 13. The Board finds the Veteran to be credible in describing his in-service incidents as they are consistent with other evidence of record, to be described in more detail below. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see also Miller v. Wilkie, 32 Vet. App. 249, 254 (2020) (stating that the duty to assist also includes addressing a veteran's lay reports of symptoms). The Veteran underwent a VA psychiatric examination in July 2016. During the examination, the clinician completed a PTSD disability benefits questionnaire and reported that the Veteran did not meet the criteria for PTSD. The clinician reported a diagnosis of an unspecified depressive disorder. At the conclusion of the examination, the clinician rendered a negative nexus opinion. As rationale, the examiner reported that the Veteran's psychiatric disorder was due to the loss of his brother-in-law and a good friend, and family strain regarding him being assigned as the executor of his brother's will. Additionally, the examiner stated that his anxiety likely preceded service. See 7/27/2016 C&P Examination. However, the Board finds this opinion inadequate. The examiner incorrectly determined that his anxiety preceded service, since as mentioned above, the Veteran is presumed sound. Moreover, the examiner did not address the lay statements of record from the Veteran's wife, daughter, and close friend. In addition, the examiner did not consider the Veteran's lay testimony of in-service stressors due to combat situations. Furthermore, the Veteran's authorized representative argued that the Veteran is entitled to the combat presumption. See 12/7/2021 Hearing Transcript, at page 5. In this instance, regarding the credible supporting evidence that the claimed in-service stressors occurred, the record demonstrates that the Veteran is a combat veteran. The record lists receipt of two Bronze Service Stars, the National Defense Service Medal, the Republic of Vietnam Campaign Medal, and the Army Commendation Medal. See 5/12/2016 DD 214 Certified Original Certificate of Release or Discharge from Active Duty. Based on this, the Board finds credible evidence supporting a finding that the Veteran is a combat veteran. 38 U.S.C. § 1154(b). In the case of any veteran who engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence of service incurrence or aggravation of in-service injury or disease will be accepted as sufficient proof of in-service incurrence or aggravation, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and every reasonable doubt will be resolved in favor of the veteran. That the particular disease or injury was incurred during service may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § § 3.304(d) (general combat presumption); 3.304(f) (PTSD combat presumption). Participation in combat is determined on a case-by-case basis. It requires that the claimant have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Receipt of a decoration is not the only acceptable evidence of such engagement. Receiving enemy fire can constitute participation in combat. See Sizemore v. Principi, 18 Vet. App. 264 (2004). A veteran's own statements and other types of evidence may support the fact of combat participation. See Gaines v. West, 11 Vet. App. 353, 359 (1998). The Veteran's personnel records indicate that he served in Vietnam from August 1970 to August 1971. See 5/12/2016 DD 214 Certified Original Certificate of Release or Discharge from Active Duty. Additionally, as mentioned above, at the Board hearing, the Veteran testified that he experienced several explosions where he woke up under his bunk and he witnessed a soldier being seriously injured, numerous American and Vietnamese soldiers, and a fellow soldier killed in a helicopter flight. Further, the record showed the Veteran received two Bronze Service Stars, the National Defense Service Medal, the Republic of Vietnam Campaign Medal, and the Army Commendation Medal (awarded, to include for an act of courage or heroism). Moreover, the AOJ established that the Veteran "experienced a stressful event in service or fear of hostile military or terrorist activity via [his] service in Vietnam." See 9/6/2018 SOC, at page 30. As such, the Board finds that the Veteran's credible testimony, as well as documentary evidence, are in approximate balance that he engaged in combat and that the claimed in-service stressors occurred. 38 U.S.C. § 5107(b). The stressors of witnessing loss of people and injuries are consistent with the circumstances of the Veteran's service. The fact that no psychological symptoms were found or reported while in service is not clear and convincing evidence to the contrary. Accordingly, the third and final element of service connection for an acquired psychiatric disorder has been met. The Board finds that the Veteran's in-service symptoms, such as "frequent trouble sleeping" and "nervous trouble of any sort," and the Veteran's prescription of Valium medication for nervousness, show that his mental health disorder was noted in service, although formal diagnoses for PTSD and unspecified depressive disorder were not given at the time. Furthermore, the Board finds that the Veteran continued to experience the same symptoms from discharge. In sum, when resolving reasonable doubt in favor of the Veteran, and after review of the claims file, the Board finds that the competent and probative medical and lay evidence is in approximate balance (or is nearly equal), that the Veteran has a current acquired psychiatric disorder that had its onset and had continued since service. As such, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD and unspecified depressive disorder, is warranted. 38 C.F.R. §§ 3.102, 3.303, 3.304. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.