Citation Nr: 1237137 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-07 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include panic and anxiety disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from February 1982 to February 1993. She had additional unverified duty as a member in the Navy Reserve and retired in approximately 2001. It is not contended that the current claim is related to this Reserve activity. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran failed to report for a videoconference hearing scheduled in October 2010. She has not provided good cause for her failure to report and has not requested to reschedule the hearing. The hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) (2012). The Virtual VA eFolder has been reviewed. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder, to include panic and anxiety disorder, that is related to active military service or events therein; and there is no evidence of a compensably disabling psychosis within one year following discharge from active duty. CONCLUSION OF LAW An acquired psychiatric disorder, to include panic and anxiety disorder, was not incurred or aggravated during active military service, nor may a psychosis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a), 3.384 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in May 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. This letter provided information regarding how VA assigns disability ratings and effective dates. The claim was most recently readjudicated in the September 2009 supplemental statement of the case. VA has also satisfied its duty to assist. The claims folder contains service treatment records and VA medical records. In her original claim, the Veteran identified private medical treatment beginning in April 1996. In May 2007, VA asked the Veteran to submit an authorization for release of records. The Veteran did not submit the requested information and as such, VA is unable to obtain these records. She has not submitted these documents on her own. The Board observes that the duty to assist is not a one-way street. If a veteran wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board acknowledges that the Veteran has not been provided a VA examination to determine the etiology of any currently diagnosed psychiatric disorder. On review and as discussed below, the Board does not find credible evidence of in-service onset and/or continuity of symptoms and as such, the requirements for a VA examination are not met. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis In August 2007, the RO denied entitlement to service connection for panic and anxiety disorder. The Veteran disagreed and subsequently perfected an appeal of this decision. The Board has rephrased the issue as stated above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish entitlement to service connection the Veteran must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Where a veteran served continuously for 90 days or more during a period of war or after December 31, 1946, a psychosis will be service-connected if manifest to a compensable degree within one year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Presumptive periods do not apply to periods of active duty training and inactive duty training. See Biggins v. Derwinski, 1 Vet. App. 474 (1991). 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 appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In her May 2007 claim, the Veteran asserted entitlement to service connection for panic and anxiety disorder. She reported that the panic and anxiety began concurrent with her imminent involuntary separation from active duty and were caused by it. In her June 2008 notice of disagreement, she claimed her disability was based on the way she was treated by her command and her abrupt discharge from the Navy. In October 2012, the representative argued that the Veteran first suffered her claimed condition shortly before her release from active duty and that it has persisted since then. Service records show that on examination for enlistment in May 1982, the Veteran's psychiatric system was reported as normal on clinical evaluation. Examinations dated in January 1983, May 1984, September 1987, and September 1989 also show the psychiatric system as normal. On examination for separation in January 1993, the Veteran's psychiatric system was again reported as normal and no psychiatric complaints or findings were documented. Reserve records include Annual Certificates of Physical Condition. In September 1994 and September 1995, the Veteran denied any mental problems which might restrict her performance on active duty or prevent mobilization. In September 1996, the Veteran again denied mental problems that would restrict her performance. It was noted that she was taking various medications, including Imipramine, but the reason for taking it was not shown. On periodic examination in September 1997, the Veteran specifically denied frequent trouble sleeping, depression, excessive worry, or nervous trouble of any sort. Her psychiatric system was reported as normal on clinical evaluation. The August 1998 annual certificate indicates that the Veteran was taking Buspar for anxiety and that the condition was currently controlled on medication with no anticipated ill effect to prohibit drilling. The September 1999 annual certificate indicates she was taking Buspar for anxiety disorder for 3-4 years. The November 2000 annual certificate indicates that she had been taking Buspar for the past 7 years. A May 2007 VA primary care note indicates that the Veteran was seeking treatment for panic disorder. She reported that she started having panic attacks since being discharged from active duty and she has been using Xanax as needed. Impression was history of anxiety attacks and panic since her discharge from military. An August 2007 VA psychology note documents the Veteran's reports that she has experienced panic and anxiety since 1993. She reported that she was discharged from active duty for failure to promote and that this prompted significant worry about her future and was a period of extreme stress. Provisional diagnosis included panic disorder; rule out panic disorder with agoraphobia; alcohol dependence by history; and nicotine dependence. Note dated in October 2008 indicates ongoing issues with panic and anxiety. Evidence of record shows the Veteran suffers from anxiety and panic and the Board concedes a current diagnosis. The question, however, is whether such diagnosis is related to a period of active military service or events therein. The Veteran has consistently maintained that her panic attacks and anxiety began prior to discharge from her initial period of active duty. While she has reported continuity of symptoms, she does not assert that her claimed condition had its onset in or was otherwise aggravated during any subsequent Reserve service. The Veteran is competent to report feelings of panic and anxiety. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (appellant competent to testify regarding symptoms capable of lay observation). The Board, however, does not find the Veteran's reports of in-service onset and continuing symptoms credible. In reaching this conclusion, the Board has considered the decision in Buchanan v. Nicholson, 451 F.3d 1331 (2006), wherein the United States Court of Appeals for the Federal Circuit (Federal Circuit) determined that the Board had erred by finding that a claimant's report of in-service psychiatric symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. In the instant case, however, the Board is not relying merely upon a general absence of complaints during service. The Board notes that the Veteran's psychiatric system was reported as normal on separation examination in January 1993 and Reserve records do not document anxiety or mental health issues until approximately 1998. In September 1997, the Veteran specifically denied psychiatric symptoms and this weighs heavily against her reports of continuing symptoms since discharge. The Board further notes that Reserve records document inconsistent information regarding how long she had been taking Buspar for anxiety. Regarding any nexus to service, the Board acknowledges the May 2007 record which includes an impression of history of panic attacks and panic since discharge from the military. To the extent this constitutes a positive nexus opinion, the Board does not consider it probative as it was based on history reported by the Veteran, which is not necessarily consistent with the overall evidence of record. Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that the Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate or that are contradicted by other facts of record); Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). The Board has considered the Veteran's argument that she currently has an acquired psychiatric disorder that is related to her active duty service. As a lay person, however, she is not competent to provide a medical etiology opinion. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). It is noted that she has contended that her disorder has caused limitations in her employment, however no substantiating evidence has been submitted. Moreover, she did not submit, or authorize VA to obtain, records of purported private post-service treatment. There is no evidence that the Veteran has been diagnosed with a psychosis as defined by VA regulations or that any such disability manifested to a compensable degree within one year following discharge from a period of active military service. See 38 C.F.R. §§ 3.307, 3.309(a), 3.384. In summary, the preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for an acquired psychiatric disorder, claimed as panic and anxiety disorder, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs