POSTTRAUMATIC STRESS DISORDER (PTSD)

NEIL T. WERNER · 2023 · Case ID: 23022558

GRANTED

Summary

The Veteran, a United States Navy Veteran who served from March 1998 to June 2005 and again from February 2016 to November 2016, appeals the denial of service connection for acquired psychiatric disorders, specifically PTSD and major depressive disorder. The Veteran contended that these conditions were due to her military service, particularly her 2016 deployment. The Board reviewed the Veteran's service treatment records, which did not indicate in-service mental health treatment. However, the Veteran's personnel record noted her unit received a Presidential Unit Citation for extraordinary heroism under dangerous combat conditions. The Veteran provided detailed lay testimony about traumatic experiences during her service, including witnessing explosions and suicide, and described significant psychological distress upon return, including nightmares, paranoia, and depression. A private mental health provider who treated the Veteran both before and after her 2016 deployment submitted an opinion stating with certainty that her current mental health issues were undeniably related to her military experiences. The Board found this opinion competent and probative, noting it was supported by treatment history and not contradicted by other evidence. The Board also found the Veteran's testimony regarding depression credible and, in conjunction with her treating provider's testimony, determined there was continuity of symptomatology since service. Applying the benefit of the doubt, service connection for both PTSD and major depressive disorder was granted.

Rationale

Medical evidence of current PTSD and major depressive disorder.; Credible lay testimony and Presidential Unit Citation support in-service stressor.; Competent and credible opinion from treating mental health provider links current conditions to service.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

19-18 713A

Full Decision Text

Citation Nr: 23022558
Decision Date: 04/17/23 Archive Date: 04/17/23

DOCKET NO. 19-18 713A
DATE: April 17, 2023

ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is granted.

FINDING OF FACT

The Veteran's acquired psychiatric disorders, diagnosed as PTSD and a major depressive disorder, are due to her military service.

CONCLUSION OF LAW

The criteria for service connection for acquired psychiatric disorders, diagnosed as PTSD and a major depressive disorder, are met. 38 U.S.C. §§ 101, 106, 1101, 1110, 11101, 1112, 1113, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service with the United States Navy from March 1998 to June 2005 and from February 2016 to November 2016. The Veteran also had an intervening period of service with a Reserve Component.

This matter is on appeal from a January 2018 rating decision by a Department of Veterans Affairs (VA) regional office (RO).

The Veteran had a hearing before the undersigned Acting Veterans Law Judge (AVLJ) in March 2021. A transcript has been associated with the file.

A s the characterization of the issue on appeal, the Board of Veterans' Appeal (Board) notes that a claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the veteran's description of the claim, the symptoms the veteran describes and the information the veteran submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the claims for service connection for PTSD pursuant to Clemons and re-characterized it as shown on the cover page of this decision.

The Service Connection Claim

The Veteran contends her mental health disability, to include PTSD and depression, is due to her time in service, in particular, her last deployment in 2016.

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1131.

If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 U.S.C. §; 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State
2, 1113; 38 C.F.R. §§ 3.307, 3.309.

In this regard, to establish service connection for the claimed disorders, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Regulations also provide that a grant of service connection for PTSD requires the following: (i) if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of 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, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor; (ii) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (iii) medical evidence establishing a link between current symptoms and an in-service stressor; and (iv) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f).

As to supporting evidence that the claimed in-service stressor occurred, if a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "[F]ear of hostile military or terrorist activity" means that 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. See 38 C.F.R. § 3.304(f)(3).

The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA
ating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Initially, the Board notes that the record shows the Veteran being diagnosed with PTSD and depression. (See e.g. March 2021 treatment records.)

As to an in-service injury and a PTSD stressor, the Veteran's service treatment records do not indicate the Veteran was seen for ongoing mental health problems while in service. However, the Veteran's military personnel record indicates she was part of a unit that was given the Presidential Unit Citation with the citation stating it was for, in part "extraordinary heroism and outstanding performance of duty in action [...] under extremely dangerous combat conditions."

Moreover, the Veteran in writings said she was deployed to Crete but also went other places, but not allowed to say where. The Veteran said the person and animals that got killed happened on Crete. She had spent some time with a Special Forces soldier and he ended up hanging himself the next morning, hanging in the shower. She said people she transferred felt like they were losing their minds. The Veteran said it was a big thing to her how she was treated when she returned with zero support. The Veteran said she was also instructed not to talk about what she did and she had to sign a document swearing she wouldn't talk about it. (See also April 2018, April 2021 Statements.)

Similarly, the Board notes that in her March 2021 hearing, the Veteran said couldn't tell people where she was going. She went through Joint Special Operations Command (JSOC) combat school and ended up on Crete. They dressed in civilian clothes and lived out in town and her job was transferring Special Forces under cover, finding places for them to stay. She said she saw someone get blown up, witnessed horses getting blown up, and saw someone who had committed suicide. The Veteran said she was attacked. She was picking up a Special Forces guy who had been drinking. She touched him on the shoulder, he blacked out, and attacked her, throwing her over a stool.

As to a link between the post-service acquired psychiatric disorders and her military service, in November 2018 the Veteran's treating mental health doctor submitted a letter. The examiner stated he had treated the Veteran from October 2014 to January 2018, both before and after her 2016 deployment. The examiner saw the Veteran extensively in 2016 and 2017 when her PTSD had been reactivated by her experiences in service and military sexual trauma. The examiner said because he had seen the Veteran for two years prior to her deployment to Crete and had seen significant clinical progress, he could say with certainty that her current mental health was not only "as likely as not related to her experiences during her military service, but they were undeniably and definitely related to those traumatic experiences."

Also to a link between the post-service acquired psychiatric disorders and her military service, the Board notes that at the March 2021 hearing the Veteran's treating mental health provider testified that the Veteran had been seeing him prior to her deployment and through the ending of her marriage starting around 2014. At that point, the Veteran was going through an adjustment disorder, nothing serious. The Veteran had anxiety, stress, and some depression from the breakup. After her deployment, she came back very different. She was disheveled, exhausted, couldn't concentrate, afflicted with nightmares and flashbacks. She also had paranoia and depression. Saw her within a few weeks of her February 2016 deployment and shortly after she came home in November 2016. The doctor said after deployment, she met the AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM) criteria for PTSD and depression, this is based on his medical training.

, the Veteran was going through an adjustment disorder, nothing serious. The Veteran had anxiety, stress, and some depression from the breakup. After her deployment, she came back very different. She was disheveled, exhausted, couldn't concentrate, afflicted with nightmares and flashbacks. She also had paranoia and depression. Saw her within a few weeks of her February 2016 deployment and shortly after she came home in November 2016. The doctor said after deployment, she met the AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM) criteria for PTSD and depression, this is based on his medical training.

In December 2017, a friend submitted a statement. She stated that she had known the Veteran since 2010. The friend said while the Veteran didn't engage in hand-to-hand combat, she saw things no one should see. The Veteran came home different and traumatized.

A co-worker and friend submitted a statement in March 2021. She said she knew the Veteran was suffering from PTSD because she had her own experiences with her retired Army father and ex-husband Marine who both had PTSD. The Veteran's friend saw the Veteran struggle with depression, panic attacks, and anxiety. The Veteran also confided in her that she had nightmares, paranoia, and had difficulty making friends. The Veteran sought help from an in-patient treatment center.

Given the above, the Board finds that the record shows the Veteran has current disabilities; acquired psychiatric disorders diagnosed as PTSD and a major depressive disorder. See 38 C.F.R. §§ 3.303, 3.304(f); Hickson, supra.

As to an in-service injury under 38 C.F.R. § 3.303 and an in-service PTSD stressor under 38 C.F.R. § 3.304(f), the Board finds that the Veteran's award of the Presidential Unit Citation for, in part, "extraordinary heroism and outstanding performance of duty in action [...] under extremely dangerous combat conditions" when combined with her competent and credible written statements and personal hearing testimony regarding the events she experienced while on active duty satisfies the 38 C.F.R. § 3.303 requirement of an in-service injury and the 38 C.F.R. § 3.304(f) requirement of an in-service stressor when affording her the benefit of any doubt on this question. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, supra.

Next, as to a link between the Veteran's post-service acquired psychiatric disorder diagnosed as PTSD and the above in-service stressor, the Board finds that the November 2018 opinion from the Veteran's doctor that her current mental health problems are due to her military service is both competent and credible as well as the most probative evidence of record. See Owens, supra. The Board has reached this conclusion because the opinion is supported by his observations treating the Veteran before and after her most recent deployment as well as because it is not contradicted by any other medical evidence of record. Id; Also see Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions); 38 C.F.R. § 3.304(f).

Similarly, as to a link between the Veteran's post-service acquired psychiatric disorder diagnosed as a major depressive disorder and the above in-service injury, the Board finds that the appellant competently and credibly testified about her observable symptoms of depression during her most recent deployment and since that time. See Davidsons, supra. The Board also finds that the Veteran's treating mental health physician competently and credibly testified that the Veteran suffered from depression during and since her most recent deployment. See Colvin, supra. Based on their credible testimony, the Board finds that the evidence as to whether the Veteran had a problem with depression in and since her last period of service is at least in equipoise. See Owens, supra. Therefore, when affording the Veteran the benefit of any doubt on this question, the Board finds that there has been continuity of her depression since service. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(b); Lynch, supra.

Given the above, the Board finds that the criteria to grant service connection for acquired psychiatric disorders diagnosed as PTSD and a major depressive disorder have been met and the appeal is granted. See 38 U.S.C. §§ 101, 106, 1101, 111
the Veteran had a problem with depression in and since her last period of service is at least in equipoise. See Owens, supra. Therefore, when affording the Veteran the benefit of any doubt on this question, the Board finds that there has been continuity of her depression since service. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(b); Lynch, supra.

Given the above, the Board finds that the criteria to grant service connection for acquired psychiatric disorders diagnosed as PTSD and a major depressive disorder have been met and the appeal is granted. See 38 U.S.C. §§ 101, 106, 1101, 1110, 11101, 1112, 1113, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309.

Neil T. Werner

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Snoparsky, A.

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.

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