Citation Nr: 1016583 Decision Date: 05/04/10 Archive Date: 05/13/10 DOCKET NO. 05-00 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an anxiety disorder. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.C. Schingle, Associate Counsel INTRODUCTION The Veteran had active service from March 1962 to March 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board notes that the Veteran had a Board hearing before the undersigned Board member in September 2005. The hearing transcript has been associated with the claims file. In June 2007, the Board remanded the case to the RO for further development in accordance with VA's duty to assist. In a June 2009 decision, the Board denied entitlement to service connection for an anxiety disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court, in a November 2009 Order, vacated the Board's June 2009 decision and remanded the matter to the Board. In the remand, the parties noted that the Board had applied an incorrect legal standard for deciding claims involving continuity of symptomatology and appeared to make a finding in contravention of Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) regarding lay evidence. The Court then remanded the case to the Board in order to reevaluate whether a VA examination is necessary with regard to the Veteran's anxiety claim. The case is now before the Board once again for adjudication. The issues of entitlement to service connection for posttraumatic stress disorder and entitlement to a total rating for compensation on the basis of individual unemployability appear to have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the Veteran's appeal has been obtained. 2. The competent, credible evidence of record shows that the Veteran's current anxiety disorder is related to service. CONCLUSION OF LAW An anxiety disorder was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Law and Analysis Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The term 'active military, naval, or air service' includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24) (West 2001). Thus, in order to establish service connection, a claimant must generally submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus or relationship between the current disability and the in- service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, the Veteran contends that his anxiety disorder started in service and that he has experienced anxiety ever since service discharge. The Veteran reported that he did not seek treatment for anxiety or a nervous condition while in service, but that he drank to settle his nerves. He reported first seeking treatment in 1989. See September 2005 hearing transcript. He reported working as a tank driver in service and said that he witnessed a tank accident in which a soldier unknown to him was killed. Id. He also reported that he saw doctors from 1966 to 1972 for a variety of medical problems. The Veteran contends that in 1965, while working for Bristol Door Co., he was told by his supervisor that he could no longer work due to his anxiety. The Veteran further contends that his marriage failed as a result of his anxiety. See 2008 lay statements. A review of the service records, including entrance and separation reports, shows no evidence of complaints of or treatment for an anxiety disorder or a nervous condition. Personnel records show he was an armor crewman in an armor unit. Post-service treatment records indicate complaints and a diagnosis of anxiety in December 2002. The record also shows treatment for anxiety in March 2003 and August 2008. A December 2004 private record shows treatment for insomnia. An August 2008 private treatment record shows a diagnosis of anxiety and posttraumatic stress disorder. Although the Veteran reported treatment in 1989, there is no evidence of record of such treatment. Treatment records from the 1960s had been destroyed and were unavailable for review. In March 2010, the Veteran was examined by a private psychologist. Upon examination, including a complete review of the claims file, the examiner opined that the Veteran's anxiety disorder was related to service. Specifically, the examiner relied substantially on lay statements of continued symptomatology provided by the Veteran, his daughter and ex- spouse. Lay statements provided by the Veteran's ex-wife and daughter and received in April 2010 reported observable symptomatology of an anxiety disorder. Specifically, the Veteran's ex-wife indicated a noticeable change in the Veteran's behavior upon returning home from service. She reported symptoms including anger, verbal abuse, jealousy, nervousness, anxiety and a drinking habit. She also confirmed that the Veteran had been treated for anxiety by a family doctor in the 1960s and that they divorced in 1983. The Veteran's daughter reported observing the Veteran's symptoms for as long as she could remember (she was born in 1965). She reported that the Veteran was nervous, easily agitated and upset, angry and easily fatigued. She also reported seeing him drink frequently to calm his nerves. In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). With regard to the lay statements of record, the Board notes that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau, supra. In this regard, the Board deems these statements credible as they are supported by and are consistent with the evidence of record, to include medical evidence showing treatment for a diagnosed anxiety disorder. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that the Board is obligated to determine the credibility of lay statements). Moreover, these statements are probative as they support the Veteran's contentions with regard to continuity of symptomatology since service. Regarding the 2010 private psychologist's opinion, the Board deems the opinion adequate, competent and the only probative medical opinion of record. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (the credibility and weight to be attached to such opinions are within the province of the Board as adjudicators); see also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases). In this regard, the examiner reviewed the claims file including hearing testimony and lay statements submitted by the Veteran's ex- wife and daughter. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion included the physician's access to the claims file and the thoroughness and detail of the opinion); see also Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence). The examiner considered the Veteran's occupation as a tank driver in service, that he was fired from his job in 1965 due to his nervous condition, as well as lay statements attesting to the Veteran's nervousness and anxiety. Additionally, the examiner provided rationale for his medical opinion. Specifically, the examiner supported his opinion with lay statements regarding the Veteran's continuity of symptomatology since service. He determined the statements to be credible and consistent with the record. The Court has held that a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this case, the VA examiner reviewed the Veteran's entire medical history and provided rationale for the medical opinion expressed. Additionally, the Board notes that the examiner based his opinion on the lay statements of record which have been deemed credible. Moreover, there is no medical opinion of record which conflicts with the 2010 examiner's opinion. Therefore, the Board finds that the medical and lay evidence of record support a link between the Veteran's anxiety disorder and service. Accordingly, the Board finds that service connection for an anxiety disorder on a direct basis must be granted. ORDER Service connection for an anxiety disorder is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs