Back to BVA DecisionsGRANTEDSpecial Benefit NO SPECIAL BENEFIT Docket No. 16-48 850
POSTTRAUMATIC STRESS DISORDER (PTSD)
J.N. MOATS · 2022 · Case ID: 22055622
Summary
The Veteran, who served on active duty from August 1971 to June 1974, appeals the denial of service connection for psychiatric disorders. The Board considered claims for PTSD and major depressive disorder, expanding the claim to include any acquired psychiatric disorder. The Veteran reported experiencing several stressors during service, including a helicopter incident off the USS America, witnessing an explosion on the USS Newport News, and racial harassment during in-service training. While service treatment records were silent on psychiatric complaints, the Board found the Veteran's lay testimony credible and consistent with his service, particularly noting his participation in combat operations and receipt of hostile fire pay. A July 2011 VA psychiatric opinion found the Veteran's PTSD and major depressive disorder more likely than not caused by or related to his military service. Although a later April 2014 VA examination found the depressive disorder not service-related, the Board gave this opinion less probative value due to its failure to address favorable evidence and provide sufficient rationale. The Board found the evidence in equipoise, resolving doubt in the Veteran's favor. Service connection for an acquired psychiatric disorder, including PTSD and major depressive disorder, was granted.
Rationale
Medical evidence establishes current psychiatric disability (PTSD, major depressive disorder).; Veteran's lay testimony regarding stressors found credible and consistent with service.; Favorable VA psychiatric opinion linked current condition to service.
Full Decision Text
Citation Nr: 22055622 Decision Date: 09/29/22 Archive Date: 09/29/22 DOCKET NO. 16-48 850 DATE: September 29, 2022 ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and a major depressive disorder, is granted. FINDING OF FACT The evidence is in at least a state of equipoise as to whether the Veteran suffers from an acquired psychiatric disability that is related to stressors suffered in Vietnam. CONCLUSION OF LAW The criteria for establishing service connection for an acquired psychiatric disorder, to include PTSD and a major depressive disorder, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1971 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision. The Veteran withdrew his request for a Board hearing by correspondence dated in February 2022. The Board acknowledges the Veteran has sought service connection for multiple psychiatric disorders and the medical record reflects several psychiatric diagnoses. Thus, in accordance with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has expanded the Veteran's claim to include any acquired psychiatric disorder. Service Connection Service connection means a disability resulting from disease or injury was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge when all the evidence establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for an acquired psychiatric disorder, to include PTSD and a major depressive disorder, is granted. The Veteran maintains he has a current psychiatric disability that is attributable to stressors incurred during his active-duty service. Specific to claims for PTSD, there must be medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125 (a), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology, and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). Concerning the requirement there be credible supporting evidence that the claimed in-service stressor occurred, VA regulation sets forth exceptions in which a claimant's lay testimony, alone, may establish the occurrence of the stressor. See 38 C.F.R. § 3.304 (f). These include when PTSD is diagnosed during service or based on stressors related to combat service, stressors related to being a prisoner of war, and, under certain circumstances, stressors related to "fear of hostile military or terrorist activity." Id. Here, all three elements to establish service connection have been satisfied. See 38 C.F.R. §§ 3.303 (a); Holton v. Shinseki, 557 F.3d at 1366; Shedden v. Principi, 381 F.3d at 1166-67. First, as concerning the requisite current diagnosis, a review of the Veteran's treatment records reflects he has been diagnosed with and treated for PTSD and a major depressive disorder. See e.g., July 2011 Medical Opinion (reflecting the Veteran's current mental health condition as including PTSD and a major depressive disorder). Accordingly, the medical evidence establishes the Veteran has a current acquired psychiatric disability. See Holton, 557 F.3d at 1366. Second, as concerning an in-service incurrence, the Board notes the Veteran's service treatment records are silent for complaints of or treatment for psychiatric symptomatology. Furthermore, February 2009 and February 2012 formal finding memos state the information surrounding the Veteran's stressors was insufficient to send to the Joint Services Records Research Center or by the National Archives and Records Administration. As such, the Veteran's stressors were not developed through these entities. The Veteran reports his first stressor as having been on a helicopter that was shortly shot down after he returned on it to his ship from receiving dental work on the USS America. See December 2008 Statement in Support of the Claim. The February 2009 formal finding notes the Veteran's service medical records show no dental treatment aboard the USS America. A review of the Veteran's dental records does not show dental work for the month and year the Veteran reported, but there are several 2012 formal finding memos state the information surrounding the Veteran's stressors was insufficient to send to the Joint Services Records Research Center or by the National Archives and Records Administration. As such, the Veteran's stressors were not developed through these entities. The Veteran reports his first stressor as having been on a helicopter that was shortly shot down after he returned on it to his ship from receiving dental work on the USS America. See December 2008 Statement in Support of the Claim. The February 2009 formal finding notes the Veteran's service medical records show no dental treatment aboard the USS America. A review of the Veteran's dental records does not show dental work for the month and year the Veteran reported, but there are several other entries. One entry notes dental treatment aboard another ship, but the entry is illegible. It is possible the entry could be read as the USS America. The Veteran reports a second stressor occurred in October 1973 while his ship, the USS Gray, was escorting the USS Newport News, and he observed several seamen lose their lives from an explosion onboard the USS Newport News. See December 2008 Statement in Support of the Claim. The February 2009 formal finding notes the USS Newport News sustained an explosion, and 20 men were killed and another 36 were injured. However, the memo notes that although the event had been verified, it happened a year before the Veteran's reported date. Though, the Board observes the Veteran's performance record shows he served on the USS Gray during the year prior to the date he reported. Furthermore, service personnel records received in January 2009 note the Veteran received hostile fire pay from July 1972 through December 1972, which would have presumably placed him off the waters of Vietnam where he reports the incident occurred. Finally, the Veteran reports he was subjected to racial harassment and that he even experienced racial harassment during an in-service race-relations training. See November 2008 Statement in Support of the Claim. He recalls an officer made such an inflammatory, racist statement, that he attacked him. Id. His service personnel records do reflect he participated in a race-relations training. Furthermore, his records also note insubordinate conduct toward a senior Petty Officer, but the circumstances surrounding the even are unclear. In statements added throughout the pendency of the claim, the Veteran has asserted he experienced psychologically stressful events during his active-duty service operating in Vietnam. See, e.g., December 2008 Statement in Support of the Claim (noting his ship, the USS Grey, was escorting another ship off the coast of Vietnam, the USS Newport News, and he witnessed an explosion); September 2016 Psychiatry Consult (noting he reported serving in Vietnam and has nightmares of sailors dying on another ship that had been in an explosion). In this regard, the Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). See, too, White v. Illinois, 502 U.S. 346, 356 (1992) (statements made, for the purpose of medical diagnosis or treatment, are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment). The Veteran's service personnel records confirm that he served in Vietnam and participated in operations against North Vietnam, for which he was awarded the National Defense Service Medal, Vietnam Service Medal with One Bronze Star, and a Republic of Vietnam Campaign Medal, which further support his assertions. Service personnel records received in January 2009 also note the Veteran received hostile fire pay from July 1972 through December 1972. Thus, in the absence of clear evidence establishing the Veteran's account as not credible, reasonable doubt will be resolved in his favor, and the occurrence of the claimed stressful events during his service is established, as it is consistent with the circumstances of his service. See 38 C.F.R. § 3.102. See also 38 service personnel records confirm that he served in Vietnam and participated in operations against North Vietnam, for which he was awarded the National Defense Service Medal, Vietnam Service Medal with One Bronze Star, and a Republic of Vietnam Campaign Medal, which further support his assertions. Service personnel records received in January 2009 also note the Veteran received hostile fire pay from July 1972 through December 1972. Thus, in the absence of clear evidence establishing the Veteran's account as not credible, reasonable doubt will be resolved in his favor, and the occurrence of the claimed stressful events during his service is established, as it is consistent with the circumstances of his service. See 38 C.F.R. § 3.102. See also 38 U.S.C. § 1154 (a) (Due consideration shall be given to the places, types, and circumstances of a Veteran's service.). See, too, Caluza v. Brown, 7 Vet. App. 498, 511, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). Accordingly, an in-service injury or incurrence is established. See Holton, 557 F.3d at 1366. Finally, as to the third element, that of a nexus between the Veteran's current acquired psychiatric disorder and the in-service stressors, in July 2011, a VA psychiatrist opined the Veteran's mental health condition, to include PTSD and a major depressive disorder, is more likely than not caused by, secondary to, or related to his military service as his psychiatric symptoms began during active service. The July 2011 letter, with its opinions, is highly probative, as it represents the informed conclusion of a medical professional supported by a thorough explanation and based on a review of the Veteran's medical history, the clinical findings made on examination, and the symptomatology reflected in the medical and lay evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding the probative value of a medical opinion comes from its reasoning); Prejean v. West, 13 Vet. App. 444, 448 (2000) (holding the Board may determine the probative value of medical opinions based on their detail and persuasiveness, and the physicians' access to a Veteran's medical records). As such, the July 2011 examiner's opinion carries significant probative weight in the Board's determination. See Caluza, 7 Vet. App. at 506 (1995). The Board notes there is an April 2014 Initial PTSD DBQ of record that did not find PTSD diagnostic criteria. The examiner determined the Veteran met the criteria for a depressive disorder, and the symptoms of that disorder began several years after the Veteran's discharge from military service. The examiner concluded by noting the Veteran's depressive disorder is more likely than not due to personal and family issues rather than his military service. However, the Board finds the probative value of this opinion is reduced as it does not address the favorable evidence of record, e.g., the Veteran's psychiatric treatment provider noting diagnoses of PTSD and a major depressive disorder that are related to his active service with his psychiatric symptoms having begun during active service. The examiner also does not provide sufficient rationale for their conclusions that the Veteran's psychiatric disability is due to personal and family issues rather than his military service. Accordingly, given the medical evidence diagnosing a current psychiatric disability, considering the Veteran's credible reports of experiencing stressful events during his active service, in light of the medical evidence of a nexus between the Veteran's current psychiatric symptomatology and the claimed in-service stressors, the Board finds the evidence is at least in equipoise as to whether his current acquired psychiatric disability is related to his active service. See 38 C.F.R. §§ 3.303 (a); Holton, 557 F.3d at 1366; Shedden, 381 F.3d at 1166-67. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds service connection for an acquired psychiatric disorder, to include PTSD and a major depressive disorder is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). J.N. Moats Acting Veterans Law Judge Board of Veterans' Appeals See 38 C.F.R. §§ 3.303 (a); Holton, 557 F.3d at 1366; Shedden, 381 F.3d at 1166-67. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds service connection for an acquired psychiatric disorder, to include PTSD and a major depressive disorder is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). J.N. Moats Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.