Citation Nr: 18132363
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-04 767
DATE:	September 6, 2018
Service connection for an acquired psychiatric disorder, to include major depressive disorder, anxiety disorder, and posttraumatic stress disorder (PTSD), is granted.
The Veteran is diagnosed with major depressive disorder (MDD), anxiety disorder, and PTSD, which are related to events that occurred during his active service.  
The criteria to establish service connection for an acquired psychiatric disability, to include MDD, anxiety disorder, and PTSD, are met.  38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).  

The Veteran served on active duty from July 1983 to December 1988 in the United States Navy.  The Veteran had subsequent reserve service.  
This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  
By way of procedural background, the Veteran submitted a claim for service connection for depression, anxiety, and suicidal tendencies in March 2013.  The RO denied the claim in June 2013.  The Veteran submitted a new claim for service connection for depression and anxiety in June 2014, within one year of the June 2013 rating decision.  The RO treated the June 2014 submission as a request to reconsider the claim.  After reconsidering, the RO issued a new rating decision in August 2014.  Again, the Veteran submitted a new claim for service connection for depression and anxiety, which was received by VA in August 2014.  The RO again treated his new claim as a request to reconsider and issued a new rating decision in September 2014 denying the claim.  Subsequently, the Veteran filed a timely notice of disagreement in August 2015, and this appeal ensued.   
Although the Veteran submitted his claim specifically for entitlement to service connection for depression, anxiety, and suicidal tendencies, there are several psychiatric diagnoses of record, to include major depressive disorder, anxiety disorder, and PTSD.  Therefore, the Board broadens the service connection claim to one for an acquired psychiatric disorder, to include major depressive disorder, anxiety disorder, PTSD, or however diagnosed.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  
Initially, the Veteran requested a video conference hearing before the Board in his January 2016 substantive appeal, via a VA Form 9.  However, the Veteran later waived his Board hearing in a September 2016 letter, through his attorney of record.  
Service connection to an acquired psychiatric disorder, to include major depressive disorder, anxiety disorder, and PTSD, 
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. 
§ 1131; 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).  Only chronic diseases listed under 38 C.F.R. § 3.309(a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303(b).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  
Generally, establishing service connection requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  
In addition to the laws and regulations governing service connection outlined above, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment.  38 U.S.C. 1111.  Only such conditions as are recorded in examination reports are to be considered as noted.  38 C.F.R. 3.304(b).  
Pursuant to 38 U.S.C. 1111, and 38 C.F.R. 3.304, to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003).  
Specifically, service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (in this case, conforming to the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).  
If VA determines either that the Veteran did not engage in combat with the enemy or that he did engage in combat, but that the alleged stressor is not combat related, then his lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor.  Instead, the record must contain evidence that corroborates his testimony or statements.  Id.  Service department records must support, and not contradict, the claimant’s testimony regarding noncombat stressors.  Doran v. Brown, 6 Vet. App. 283 (1994); see also Fossie v. West, 12 Vet. App. 1, 6 (1998).  
Additionally, if a stressor claimed by a Veteran is related to the Veteran’s “fear of hostile military or terrorist activity” and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service.  38 C.F.R. 
§ 3.304(f)(3).
“Fear of hostile military or terrorist activity” is defined as when “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.”  Id.  
When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  
Turning the claim at hand, the Veteran contends his acquired psychiatric disorders are related to his active service.  
As an initial matter, the Veteran has diagnoses of MDD, anxiety disorder, panic disorder without agoraphobia, cognitive disorder, and PTSD during the appellate period.  See October 2012 VA treatment records, January 2016 VA examination, and March 2016 private opinion.  
However, there are no reports of symptoms, diagnoses, or treatments for an acquired psychiatric disorder in the Veteran’s service treatment or military personnel records.  The Veteran’s December 1982 Report of Medical Examination at enlistment, while only partially legible, does not appear to report any psychiatric abnormalities.  
In December 2015, the Veteran submitted a statement that identified three in-service traumatic events: (1) The Veteran witnessed his only close friend in service hang himself while serving aboard the U.S.S. Kirk in May 1985.  The Veteran opened the door to a storage area below deck, and saw his friend standing on stacked supply boxes with a noose around his neck.  Before the Veteran could reach him, his friend jumped off the boxes.  The Veteran suspended his friend’s body and performed CPR; but unfortunately, his friend passed away.  Immediately following this incident, the Veteran reported having vivid memories and dreams of this traumatic event and he began having trouble sleeping through the night.  He blamed himself for not being able to save his friend, and experienced guilt, insomnia, fatigue, and depression.  He also reports falling asleep at work during service following this incident due to his sleeping difficulties; (2) while activated as a reservist, the Veteran was stationed near Panama.  Suspected drug traffickers on a watercraft fired at his ship.  He, along with other sailors, were ordered to return fire.  The Veteran saw that they had wounded them, but no aid was rendered.  The boat sank, and the Veteran assumed those aboard the watercraft died.  Nobody ever spoke of the incident and he did not know if it was recorded; and (3) in 1984, the Veteran was aboard the U.S.S. Kirk when the ship was hit by a giant wave.  The Veteran injured his head, back, and leg and was treated at Subic Bay Naval Hospital in the Philippines.  The Veteran reported that his inability to sleep, low mood, and depression were aggravated by his current knee and back pain.  
As these in-service events are not combat-related, additional supporting evidence must be provided that supports the Veteran’s account of the in-service stressor.  In that regard, the Veteran’s personnel records include a certificate of award for a Navy Achievement Medal.  The certificate specifically notes that the Veteran was awarded this medal “while serving on the U.S.S. Kirk. On the evening of May 14, 1985, [the Veteran] discovered that one of his shipmates had attempted to physically hurt himself …[The Veteran] acted promptly to try to prevent further injury, called for the Ship’s Corpsman, and immediately began cardio pulmonary resuscitation…”  Thus, as this evidence is credible supporting evidence that this event occurred, this in-service stressor is conceded.  However, because there is a positive nexus opinion of record regarding this in-service stressor, whether the other stressors are verified with credible supporting evidence will not be discussed in this decision.  
Thus, the remaining question is whether the acquired psychiatric disorders are related to his service and whether the diagnosed PTSD is related to this in-service stressor.  
VA treatment records dated October 2012 note that the Veteran experienced onset of depression at age of 19.  The Veteran’s spouse, who was also in attendance at this appointment, confirmed that she had known him before service because she was friends with the Veteran’s sister in high school.  The Veteran’s spouse reported that he was different after the Navy, including being withdrawn and becoming uninvolved in activities he previously enjoyed.  
December 2012 VA treatment records indicate the Veteran’s reported traumatic events included witnessing his friend commit suicide during service and killing drug runners off the coast of Panama.  
April 2013 VA treatment records indicate the Veteran reported the onset of depression when he was in the military and that he has continued to be depressed since discharge from the military.  November 2013 VA treatment records include a PTSD screening which required a score of 56 for a diagnosis of PTSD.  The Veteran scored a 57 and screened with a score of 48.  
The Veteran’s treating psychiatrist, as well as other treating VA mental health professionals, repeatedly and consistently reported that their clinical impressions were that the Veteran had a history of MDD with onset during military service in the setting of traumatic events.  The VA mental health professionals also note that, while the Veteran did not meet the full criteria for a PTSD diagnosis, the Veteran should continue to be assessed for PTSD.  See November 2012 through March 2015 VA treatment records.  
The Veteran was afforded a VA psychiatric examination in January 2016.  The VA examiner, a psychologist, diagnosed the Veteran with persistent depressive disorder and generalized anxiety disorder.  The examiner concluded the Veteran did not meet the criteria for a diagnosis of PTSD solely because the Veteran’s in-service stressors, to include witnessing his friend’s suicide and killing drug runners off the coast of Panama, were not related to the fear of hostile military or terrorist activity.  The examiner explained that neither the Veteran’s friend and fellow soldier nor the drug runners were hostile military forces or terrorists.  Additionally, the examiner indicated that the Veteran did not have intrusion symptoms, despite the Veteran’s contentions that he immediately had vivid intrusive memories and dreams following the event in his December 2015 statement.  No response was provided by the examiner for Criterion C, F, G, H, or I.  However, despite finding that the Veteran had not met the criteria for a PTSD diagnosis, the psychologist reported that the Veteran’s in-service stressful incidents had a “powerful impact on him” and “more likely than not have resulted in distressing memories and episodes of anger and depression triggered by reminders of these incidents, such as some television programs.”  Despite having a “powerful impact” on the Veteran, the examiner noted the nature, frequency, and severity of the Veteran’s psychiatric symptoms did not meet the criteria in the DSM-5 for a PTSD diagnosis.  Further, the examiner noted that the Veteran had extensive treatment at VA by psychiatrists, psychologists, a clinical social worker, and a psychiatric nurse since 2012 and had never been diagnosed with PTSD before this examination.  Therefore, the examiner concluded it was less likely than not that the Veteran’s miliary service was significantly related to the Veteran’s acquired psychiatric disorders.  Further the examiner concluded that it was more likely that the psychiatric disorders were related to nonservice-connected biopsychosocial factors, to include his dysfunctional family during childhood and chronic medical problems.  The examiner did not identify whether these chronic medical problems were service-connected or nonservice-connected disabilities.  
In March 2016, the Veteran submitted a private medical opinion as to the nature and etiology of his acquired psychiatric disorder.  The Veteran was examined in March 2016 by C.L.K., a licensed professional counselor, certified rehabilitation counselor, and former contract counselor for VA.  C.L.K. reviewed the entire claims file, examined the Veteran, and administered objective clinical testing for mental health disorders generally and PTSD specifically.  He considered the Veteran’s in-service events, to include witnessing a close friend’s suicide and killing drug runners in service.  He reported that the Veteran received psychiatric treatment from a VA psychiatrist since 2012, and C.L.K.’s impression was that the Veteran had recurrent MDD with onset during military service in the setting of traumatic events.  He also reported the VA psychiatrist never said that the Veteran did not have PTSD, but instead indicated the Veteran may have PTSD and further evaluation was needed.  
C.L.K. also considered the Veteran’s statements, including his reports that the depression and difficulty sleeping began during service after witnessing his friend commit suicide.  Additionally, C.L.K. also noted there were service treatment records and personnel records that confirm the Veteran was administratively reprimanded for falling asleep on watch, corroborating what was previously reported by the Veteran.  
C.L.K. reviewed the January 2016 VA examination and commented that whether the Veteran had a dysfunctional childhood was less important in this case, as no psychological disorders were noted on entrance into service.  See December 1982 Report of Medical Examination at enlistment.  C.L.K. also reported that childhood difficulties in and of themselves do not necessarily correlate to adult emotional functioning and cited to recent psychological studies and research.  C.L.K. concluded that it was more likely than not that the previous diagnoses of persistent depressive disorder and anxiety disorder was, in fact, PTSD under the DSM-5.  Additionally, C.L.K. concluded that the Veteran’s psychiatric disorders more likely than not was related to the Veteran’s military service.  C.L.K. indicated that the trauma experienced by the Veteran in the military is the typical basis for development of PTSD and leads to the same symptoms described by the Veteran.  
On review of all evidence, both lay and medical, the Board finds that the criteria to establish service connection for an acquired psychiatric disorder, to include MDD, generalized anxiety disorder, and PTSD are met.  
As an initial matter, no psychiatric disabilities were diagnosed or noted on the pre-induction examination.  As a preexisting psychiatric disorder was not noted at entry into active service, the presumption of soundness attaches.  
Regarding the PTSD, the evidence is at least in equipoise that the Veteran meets the diagnostic criteria for a PTSD diagnosis.  In March 2016, the Veteran was diagnosed with PTSD under the DSM-5 by C.L.K, a licensed professional counselor and former contracted therapist for VA.  C.L.K. interviewed the Veteran, performed appropriate psychological testing for PTSD, and reviewed the claims file.  Conversely, the January 2016 VA examiner opined that the Veteran did not meet the criteria for a PTSD diagnosis.  Nonetheless, the Board finds that the January 2016 medical opinion does not outweigh the PTSD diagnoses rendered by the March 2016 private opinion.  The Board notes that the January 2016 VA examiner’s opinion is internally inconsistent and failed to consider the Veteran credible lay statements.  Additionally, the January 2016 VA examiner used the wrong evidentiary standard when he concluded the Veteran’s acquired psychiatric disorder was not significantly related to his military service.  Further, he did not clearly identify which chronic medical problems exacerbated the Veteran’s psychiatric disorders.  Of note, the Veteran is service-connected for additional medical disabilities and is not service connected for others.  The Board cannot determine from this medical opinion whether he was referring to the Veteran’s service-connected or nonservice-connected disabilities.  The Board finds the January 2016 opinion to be of less probative weight than the March 2016 private opinion.  The Board assigns significant probative weight to the March 2016 medical opinion because not only is it factually accurate and fully articulated, but C.L.K. examined the Veteran, thoroughly reviewed the claims file, and considered the Veteran’s contentions and identified in-service stressors.  Accordingly, and resolving all doubts in favor of the Veteran, the Board finds that the weight of the evidence supports a current diagnosis of PTSD.
As to the in-service stressors, the Veteran in this case has reported multiple in-service stressors, as described above.  Of those stressors, he has consistently provided competent and credible statements.  As noted above, there is credible supporting evidence in the Veteran’s service personnel and treatment records that support that the Veteran’s reported in-service stressors occurred.  Thus, the Veteran’s in-service stressor, specifically the stressor related to witnessing his friend commit suicide, has been verified and is conceded.  
Finally, there is a medical nexus between the verified in-service stressor and the Veteran’s current PTSD diagnosis.  C.L.K.’s March 2016 medical opinion diagnosed PTSD under the DSM-5 based on the Veteran’s reported in-service stressors, as detailed above, and related them active service.  
As there is a current diagnosis of PTSD of record, a verified in-service stressor, and a medical nexus that links the etiology of the PTSD to the in-service stressor, the evidence is in support of the claim.  Resolving all doubt in favor of the Veteran, service connection for PTSD is granted.  
Additionally, as discussed above, the Veteran also has a current diagnosis of MDD and anxiety disorder.  Further, as discussed above, the in-service events have been conceded.  
As to whether the Veteran’s MDD and anxiety disorder are related to service, the Board finds that the most probative evidence of record is the March 2016 private opinion from C.L.K. and the Veteran’s VA treatment records, authored by the Veteran’s treating psychiatrists and psychologists.  The Veteran’s treating mental health professionals and physicians consistently relate that the Veteran’s MDD and anxiety disorder had onset during service and in the context of the identified traumatic events.  The Board recognizes that the Court has not fully embraced a “treating physician rule” under which a treating physician’s opinion would presumptively be given greater weight than that of any other examiner.  See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. 467, 471-73.  Regardless, the length of a medical professional’s opportunity or opportunities to examine a claimant may be considered in assigning probative weight.  Guerrieri, 4 Vet. App. at 471-7.  Thus, the Board finds the opinions of the Veteran’s treating mental health professions to be probative and assign them high weight.  
In summary, the Board finds that the Veteran has a current diagnosis of MDD, anxiety disorder, and PTSD, credible supporting evidence that at least one claimed in-service stressors occurred and probative medical evidence of a nexus between the Veteran’s PTSD and the in-service stressor.  Additionally, the Veteran’s VA treatment records consistently relate his MDD and anxiety disorder to his experiences during active service.  Accordingly, the criteria to establish service connection for an acquired psychiatric disorder, to include MDD, anxiety disorder, PTSD, or however diagnosed, are met and the claim must therefore be granted.  
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Harper, Associate Counsel 

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