Citation Nr: 18160518
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 11-21 679
DATE:	December 27, 2018
ORDER
Entitlement to service connection for an acquired psychiatric disorder, variously diagnosed as depressive disorder, NOS, and specific trauma/stressor related disorder, claimed as posttraumatic stress disorder (PTSD), is granted.
Entitlement to service connection for bruxism is granted.
 
FINDINGS OF FACT
1. Resolving reasonable doubt in the Veteran’s favor, his acquired psychiatric disorder is at least as likely as not related to his first period of active duty service.
2. Resolving reasonable doubt in the Veteran’s favor, his bruxism is proximately due to his service-connected acquired psychiatric disorder.
CONCLUSIONS OF LAW
1. The criteria for service connection for an acquired psychiatric disorder, claimed as PTSD, are met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.
2. The criteria for secondary service connection for bruxism are met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1982 to August 1986, June 1989 to June 1993, and November 2001 to May 2002.
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from November 2009 and April 2010 rating decision by the Department of Veterans Affairs (VA) Regional office (RO) in Seattle, Washington.
The Veteran did not appear for a videoconference hearing scheduled in June 2015 and did not provide an explanation for his absence.  As such, the hearing request is deemed withdrawn.  38 C.F.R. § 20.704(e).
The Board has recharacterized the Veteran’s claim for service connection for posttraumatic stress disorder (PTSD) as a claim for service connection for an acquired psychiatric disorder, claimed as PTSD.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).
The Board notes that the Veteran revoked his appointment of the Veterans of Foreign Wars as his power of attorney.    As the Veteran has not appointed another representative, the Board recognizes the Veteran as now proceeding pro se in this appeal.
Service Connection
Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement.  See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
In addition to the general principles governing service connection, to establish entitlement to service connection for PTSD the evidence must satisfy three basic elements.  There must be: 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f).  A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a).
If the claim is based on an in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Whether a stressor occurred is a factual determination. Zarycki v. Brown, 6 Vet. App. 91, 97-98 (1993); see 67 Fed. Reg. 10330 (Mar. 7, 2002). In contrast, whether a stressor is sufficient to support a diagnosis of PTSD is a medical determination.  Competent lay evidence is sufficient to establish the occurrence of an in-service event to establish entitlement to service connection for an acquired psychiatric disorder other than PTSD under 38 C.F.R. § 3.303 (a).
Establishing a service connection on a secondary basis requires evidence to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 37 C.F.R. § 3.310.
1. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD)
The Veteran seeks service connection for an acquired psychiatric disorder, claimed as PTSD.  He reported that he had ongoing difficulties with trust, establishing relationships, and mood and anxiety symptoms
The threshold determination in a claim for service connection is whether the Veteran has a current disability.  In this appeal, the more precise question is not whether the Veteran has a current disability, but rather what the appropriate diagnosis actually is.  In December 2016, the Board remanded the appeal to, inter alia, obtain a VA medical opinion to identify the Veteran’s current psychiatric disorder, and to specifically state whether the Veteran has a diagnosis of PTSD.
The Veteran underwent VA examinations in October 2008, February 2017, and May 2018.  During the February 2017 VA examination, the examiner diagnosed other specified trauma and stressor-related disorder.  The examiner reported that the Veteran did not meet the criteria for PTSD.  
At least as to non-PTSD diagnoses, the current disability criterion is met.  With regard to PTSD, the Board finds that the evidence of record does not support a finding that the Veteran currently suffers from PTSD.  The results of VA examinations performed in February 2017 and May 2018 both found that the Veteran did not meet the criteria for a PTSD diagnosis. Though both found that the Veteran did suffer from a psychiatric disorder, each explained in detail why the criteria for a PTSD diagnosis were not met.
The Veteran reported that military sexual trauma (MST) occurred while he served aboard the USS Saginaw beginning around 1982.  He reported that it continued for the next year and a half to two years. He indicated that he did not report it, because no one would have believed him at the time and he feared retaliation by the Chief and management.  He also indicated that due to the stigma associated with depression, he was never seen by a mental health specialist while on active duty, and that no one no one would have believed him if he reported the MST.  
Post-service treatment records show the Veteran first presented for chronic stress reaction and severe anxiety in September 2001.  He attributed it to persistent unrelenting stress at work.  At a follow up visit, he reported that his anxiety was due to his supervisor, who the Veteran indicated was abusive, had erratic moods, and was verbally abusive.
In April 2002, the Veteran underwent a psychological assessment for PTSD.  At the assessment, the Veteran recalled being harassed in the service by his section chief in the Navy when he was stationed in the Mediterranean in the 1980s. In May 2002 at a mental health outpatient evaluation, the Veteran reported that he while on active duty in the Navy from 1982 to 1986 he experienced discrimination and harassment from his supervisor.  He indicated that he attempted to deal with his problems on his own because his culture stigmatizes those who receive mental health treatment, but was now willing and interested in receiving mental health treatment.
In its role as a finder of fact, the Board finds the Veteran’s assertion of experiencing harassment during service to be credible, particularly in light of the Veteran’s reports when he first sought mental health treatment in 2001 and 2002 that he had experienced depressive and anxiety symptoms since his first active duty military service, and that he believed it was the result of harassment from his supervisor while in the Navy in the 1980s.
With respect to an acquired psychiatric disorder other than PTSD, the Board finds the Veteran has competently and credibly testified to an in-service event to establish entitlement to service connection for an acquired psychiatric disorder other than PTSD under 38 C.F.R. § 3.303(a).
In October 2008, the Veteran underwent a VA examination.  The examiner diagnosed depressive disorder, not otherwise specified (NOS).  The examiner indicated that the Veteran did not meet the diagnostic criteria for PTSD.  In reference to the question, if PTSD is diagnosed please determine if it can be medically linked to his sexual trauma while on active duty, the examiner indicated simply “No.”
In February 2017, the Veteran underwent a VA examination.  The examiner diagnosed other specific trauma/stressor related disorder.  The examiner further indicated that the Veteran did not meet the criteria for a diagnosis of PTSD in Criteria B, Criteria E, or Criteria F.  The examiner opined that it was at least as likely as not (50 percent or greater probability) the claimed condition was incurred in or caused by the claimed in-service injury, event or illness.  The examiner explained that while the Veteran did not meet the full clinical criteria for PTSD, he did have some symptoms related to MST experienced while in service.
In May 2018, the Veteran underwent a VA examination.  The examiner confirmed a diagnosis of other specified trauma and stressor related disorder, and that the full diagnostic criteria for PTSD were not met.  She opined that it was less likely as not the Veteran’s current other specified trauma and stressor related disorder was etiologically related to his active duty service.  She explained that there was a lack of objective evidence of a mental health condition or related treatment in active duty service records; and that the Veteran first sought treatment in 2001, over 10 years after the stressor event.
The Board notes the conflicting medical evidence of record as to whether the Veteran’s current acquired psychiatric disability was incurred or is related to his active duty service.  The February 2017 examination report opined it was at least as likely as not the Veteran’s current disability was related to his active duty service.  The May 2018 examination report, upon review of the same chronological service and treatment history, opined that it was less likely as not the Veteran’s current disability was related to his active duty service.  The May 2018 VA examiner’s opinion is less probative, however, as the stated that the a negative opinion was given because there was no documented mental health symptoms or problems during service.  The VA examiner did not give a medical reason justifying why contemporaneous medical documentation was needed.  This opinion is therefore less probative.  See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011).  
Thus, the Board finds the February 2017 VA examiner’s opinion to be moreprobative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).  
Accordingly, resolving all doubt in the Veteran’s favor, the Board finds that the evidence is at least in equipoise as to whether the Veteran has a current psychiatric diagnosis related to service.
2. Entitlement to service connection for bruxism
The Veteran seeks service connection for bruxism.  The Veteran has a diagnosis of bruxism, and wears a night guard at night due to heavy bruxism and clinching of his jaw.
Given the above grant of service connection for an acquired psychiatric disorder, the Board must consider whether service connection for bruxism on a secondary basis is warranted.
In March 2017, the Veteran underwent a VA examination.  The VA examiner diagnosed bruxism, and noted that his first dental appointment while at Sand Point Naval Station documented teeth grinding.  The examiner opined that the most likely etiology of bruxism was stress.  The issue of entitlement to service connection for bruxism as secondary to an acquired psychiatric disorder has been raised by the record. 
(Continued on the next page)
 
The Board finds that the medical evidence for and against the claim is at least in relative equipoise. Resolving reasonable doubt in favor of the Veteran, there is a basis of entitlement to service connection on a secondary basis under 38 C.F.R. § 3.310.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.
 
C. BOSELY
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Lauritzen, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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