Citation Nr: 25005509 Decision Date: 04/23/25 Archive Date: 04/23/25 DOCKET NO. 14-35 573A DATE: April 23, 2025 ORDER Service connection for an acquired psychiatric disability is granted. REMANDED Service connection for a sleep disability, to include as secondary to the service-connected acquired psychiatric disability, is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's acquired psychiatric disability is related to active duty service in the U.S. Army. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1982 to June 1988 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office. While in the Veteran's VA Form 9 he requested to appear before the Board for a hearing, he withdrew this hearing request in July 2024. Finally, the VA Regional Office developed the appeal to include three separate psychiatric claims, including for posttraumatic stress disorder (PTSD), an anxiety disorder, and depression. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the matter to broadly include a single claim for any acquired psychiatric disability. 1. Service connection for an acquired psychiatric disability is granted. VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Evidence is not in approximate balance or nearly equal, and therefore the benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). The Veteran has a current acquired psychiatric disability, variously diagnosed as unspecified depressive disorder with anxious distress, major depressive disorder, and posttraumatic stress disorder (PTSD). See, e.g., July 2023 private medical report of Dr. M.; November 2023 VA examination report. On the Veteran's service entrance examination, no psychiatric abnormalities were found by the examining physician. He reports that one morning while serving at Fort Hood, Texas, a sergeant did not show up for formation. The Veteran and others were tasked with going to the sergeant's house to check on his whereabouts. Upon their arrival, they found that the sergeant had killed himself and his pregnant wife in their home. The Veteran was required to remain at the site to help clean the remains, and he reports an onset of his psychiatric symptomatology from the incident. In support, the Veteran supplied the name of the sergeant, location of the incident, and date of the incident. His attorney retrieved documents from the National Archive Records corroborating the death of the identified sergeant by a self-inflicted injury, which occurred in early September 1985 in Texas. The Veteran's service separation document (DD214) and service personnel records corroborate that he too was stationed at Fort Hood, Texas between August 23, 1985, and September 10, 1985, completing a Supply Clerk's Course. The VA Military Records Research Center (MRRC) (the successor to the U.S. Army and Joint Service Records Research Center) was also contacted for verification of the incident, but could not locate the 1985 unit history or daily journals for the Veteran's battalion and unit. Service personnel records show that in the years following this incident, the Veteran also requested a compassionate reassignment, due to the poor psychiatric health of his wife, which was supported by numerous medical statements and reports of family and friends at the time. In February 1988, he was documented as absent without leave (AWOL). In April 1988, he was disciplined and his security clearance was revoked. His service separation document indicates that he was discharged due to hardship. Further, in July 2024, the Veteran's sister submitted a statement indicating that the Veteran had raised her from the time she was a young girl. She stated that following the incident in the military, his demeanor and behavior changed entirely. She reported that since the incident, the Veteran has experienced episodes of uncontrollable crying, nightmares, and depression. The Board finds that the sum of the above evidence corroborates the September 1985 incident as contended. This finding is supported by the competent and credible lay statements of the Veteran and his sister, the National Archive Records, and the Veteran's disciplinary problems thereafter. While the MRRC did not locate the 1985 unit history or daily journals for the Veteran's battalion and unit, this does not weigh against the claim. The Board thus accepts the in-service incurrence of psychiatric symptomatology as contended. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). On the matter of the etiology of the disability, the record contains two opinions. In a July 2023 private psychological report, Dr. M. stated that she reviewed the Veteran's claims file and conducted a clinical examination. She summarized the traumatic incident in service, and applied the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) to explain how the symptomatology from the incident developed into the current diagnoses of PTSD and major depressive disorder. She stated that the Veteran's current diagnoses were based on psychiatric symptoms that emerged in response to the traumatic stress experienced from witnessing the aftermath of a murder-suicide perpetrated by a fellow servicemember. Dr. M. opined that, with a high degree of certainty, the current diagnoses were related to military service. On VA examination in November 2023, the examiner diagnosed the Veteran with unspecified depressive disorder with anxious distress. The examiner summarized the in-service incident, but found it insufficient to support a diagnosis of PTSD because the Veteran did not have a close relationship with the sergeant. The examiner did not provide an opinion on the etiology of the current disability. Considering the evidence under the laws and regulations as set forth above and resolving any reasonable doubt in the Veteran's favor, the Board finds the evidence persuasively favors an award of service connection for the psychiatric disability as directly related to service. As described above, his service treatment records document pertinent symptoms, the lay reports are internally consistent and consistent with the record as a whole, and the incident is corroborated by National Archive Records and service personnel records. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Additionally, the July 2023 opinion of Dr. M. is fully adequate for adjudication. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Dr. M. based her findings on a review of the claims file and examination of the Veteran, and provided a rationale for the conclusions reached. As noted, the November 2023 VA examiner did not opine on the etiology of the current disability, and thus the report does not weigh against the claim. Rather, the July 2023 opinion of Dr. M. constitutes the entirety of the medical opinion evidence. The Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, in resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for his acquired psychiatric disability is warranted. REASONS FOR REMAND 1. Service connection for a sleep disability, to include as secondary to the service-connected acquired psychiatric disability, is remanded. The Veteran's attorney reports that the Veteran's sleep disability is secondary to his psychiatric disability. See July 2024 correspondence. Both the July 2023 private psychological report of Dr. M., and the November 2023 VA examination report, document sleep disturbances in relation to the psychiatric disability. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The evidentiary requirement that the record indicates that the claimed disability may be associated with active service is a "low threshold." Id. at 83. In light of the indication of secondary service connection, a VA opinion in this regard must be obtained. 2. A TDIU is remanded. Prior to the decision herein, the Veteran was not service-connected for any disability. See January 2024 Rating Decision Codesheet (most recent codesheet). By way of this decision, the Veteran has been awarded service connection for an acquired psychiatric disability. Appellate adjudication of the TDIU claim must be deferred pending implementation of the Board's awards of service connection by the VA Regional Office, including the assignments of ratings and effective dates. Any appellate action otherwise at this juncture would contravene applicable law. The matters are REMANDED for the following actions: 1. Sleep Disability Examination - Afford the Veteran a VA examination to obtain evidence addressing the etiology of any current sleep disability. A rationale must be provided for all conclusions reached. The examiner is asked to consider the Veteran's lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record. (a.) The examiner is requested to first clearly identify all current sleep disabilities. Opine on whether the Veteran has a sleep disability separate and distinct from his psychiatric disability. If the symptomatology cannot be distinguished or is interrelated, the examiner must say so. (b.) Opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the current sleep disability began during active service or is related to an in-service injury, event, or disease. Why or why not? (c.) Opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's psychiatric disability (i.) caused OR (ii.) aggravated the sleep disability. Why or why not? The examiner is advised that aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent" worsening of the nonservice connected disability. The examiner is also advised that 38 U.S.C. § 1110 allows for service connection of conditions that would have been less severe were it not for the service-connected disability even if the worsening of the condition occurs due to the natural progression of that condition. See Spicer v. McDonough, 61 F.4th 1360, 1364 (2023). The examiner must provide separate opinions and rationales to address secondary causation and secondary aggravation. Atencio v. O'Rourke, 30 Vet. App. 74 (2018). The reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. In forming the opinion, the examiner cannot rely on the absence of medical records corroborating disability. A complete rationale must be offered for all opinions expressed, including a discussion of the evidence and medical principles which led to the conclusions reached. 2. Upon completion of the above development, readjudicate the matter of service connection for a sleep disability, and implement the Board's award of service connection for an acquired psychiatric disability. Then, readjudicate the Veteran's entitlement to a TDIU. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.