Citation Nr: 0811663 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 05-17 800A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD) and/or anxiety disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Raven D. Perry, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from September 1944 to July 1946. Receipt of the Combat Infantryman Badge is indicated in the record. This case comes to the Board of Veterans' Appeals (the Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs Regional Office (RO) in Chicago, Illinois which denied the veteran's claim for entitlement to service connection for PTSD. In April 2008, a motion to advance this case on the Board's docket was granted. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900 (2007). FINDINGS OF FACT 1. The veteran engaged in combat with the enemy. 2. The competent medical evidence of record does not support a finding that PTSD currently exists. 3. The competent medical evidence of record indicates that the veteran's currently diagnosed anxiety disorder is related to his combat service. CONCLUSION OF LAW Service connection for anxiety disorder is warranted. 38 U.S.C.A. §§ 1110, 1154(b) (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159, 3.326(a) (2007). In light of the favorable decision for the veteran in this case, any error in the timing or content of VCAA notice or assistance is moot. Relevant law and regulations Service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). In order to establish service connection for the claimed disorder, 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In order for a veteran to establish service connection for PTSD he must offer proof of: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that a claimed in-service stressor actually occurred; and (3) medical evidence of a link between current PTSD symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f); accord Sizemore v. Principi, 18 Vet. App. 264, 269 (2004); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). If the record demonstrates that the veteran engaged in combat with enemy forces, then by statute VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b) (West 2002). Analysis The veteran seeks service connection for an acquired psychiatric disorder which he contends is a result of combat service. At the outset of this discussion, the Board notes that the issue on appeal was characterized by the RO as a claim of service connection for PTSD. However, in the veteran's initial informal claim received in March 2004 he appeared to be seeking service connection for a psychiatric disorder of unspecified type, rather than specifically for PTSD. Furthermore, as will be discussed below, there is medical evidence of record identifying two potential psychiatric disorders as being related to his military service. Accordingly, the Board has recharacterized the issue on appeal as being a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and/or anxiety disorder. The Board has considered the holding of the United States Court of Appeals for the Federal Circuit in Ephraim v. Brown, 82 F.3d 399, 401 (Fed. Cir. 1996), wherein the Federal Circuit held that a newly diagnosed disorder, whether or not medically related to a previously diagnosed disorder, cannot be considered the same claim. See also Boggs v. Peake, No. 2007-7137 (Fed. Cir. Mar. 26, 2008). However, these decisions dealt with the issue of whether the claims on appeal should be considered as having been previously denied as contemplated by 38 U.S.C.A. § 5108. That situation is quite distinct from the case herein, which is clearly an original claim under de novo review. Under these circumstances, the Board finds that, in light of the veteran's general contentions in his informal claim, and the medical evidence of record, it is appropriate to recharacterize the issue on appeal as being a claim for an acquired psychiatric disorder, rather than one solely for PTSD. As noted above, in order for service connection to be granted, three elements must be present: (1) evidence of current disability; (2) evidence of in-service incurrence of disease or injury; and (3) medical nexus evidence linking (1) and (2). Cf. Hickson, supra. With respect to Hickson element (2), the veteran is in receipt of the Combat Infantryman Badge. Accordingly, combat status is conceded, and element (2) is accordingly satisfied. With respect to Hickson element (1), the Board initially notes that the June 2004 VA examiner found that the veteran does not meet the DSM-IV criteria for a diagnosis of PTSD but instead evidences an anxiety disorder. The Board finds this opinion, offered by a psychiatrist after reviewing the veteran's prior medical history and conducting extensive psychiatric evaluation of the veteran, to be highly probative. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."] In contrast to the findings of the VA examiner are two statements from J.E., CADC, which indicate a diagnosis of PTSD. However, unlike the June 2004 VA examination report, there is no indication that J.E. conducted psychiatric evaluation of the veteran in conformity with the DSM-IV criteria in offering this diagnosis. For this reason, and in light of their respective qualifications, the Board finds the opinion of the VA examiner that the veteran did not meet the criteria for PTSD to be more probative. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [whether the physician provides the basis for his/her opinion goes to the weight or credibility of the evidence]; see also Owens v. Brown, 7 Vet. App. 429, 433 (1995) [the Board may appropriately favor the opinion of one competent medical authority over another.] Accordingly, the competent medical evidence does not indicate a current diagnosis of PTSD. Notwithstanding the above, the Board further finds that Hickson element (1) has been satisfied as to the veteran's currently diagnosed anxiety disorder. In her opinion, the VA examiner specifically noted that the veteran had some symptoms of PTSD, but that they were not severe enough to warrant a diagnosis of PTSD. The examiner further explained, however, that the veteran was exposed to traumatic stress during his service in World War III, and that his symptoms of nightmares and increased startled response were consistent with a diagnosis of anxiety disorder, not otherwise specified. After noting an Axis I diagnosis of anxiety disorder, the examiner also noted Axis IV findings that his stressors included some increased recollections of his service in World War II due to the current war in Iraq. Thus, with respect to Hickson element (3), medical nexus, the June 2004 VA examiner clearly found that there was a medical relationship between the veteran's current anxiety disorder and stressors of his combat service. Accordingly, Hickson element (3), and thus all elements, has been met. In summary, for reasons and bases expressed above, the Board concludes that service connection for anxiety disorder is warranted and the benefit sought on appeal is granted. ORDER Service connection for anxiety disorder is granted. ____________________________________________ MICHAEL LANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs