Citation Nr: 1302872 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 08-32 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include anxiety disorder with panic attacks. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for addiction to prescription drugs as a result of VA treatment. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to March 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2006 and May 2008 decision rendered by the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2011, the Veteran testified during a hearing before a Veterans Law Judge regarding a petition to reopen a claim for service connection for an anxiety disorder with panic attacks and a claim for compensation under 38 U.S.C.A. § 1151 for addiction to prescription drugs. In September 2011, the Board reopened service connection for anxiety disorder with panic attacks. That claim and the claim for compensation under 38 U.S.C.A. § 1151 were remanded to the RO, via the Appeals Management Center. Later, in July 2012, the Veteran testified at a videoconference hearing before a different Veterans Law Judge. Here, because multiple members conducted hearings covering the same issues, the law requires that the Board assign a third VLJ to decide the common issues because a proceeding before the Board may be assigned either to an individual VLJ "or to a panel of not less than three members of the Board." 38 U.S.C. § 7102(a); 38 C.F.R. § 19.3. In a November 2012 letter, the Veteran was informed of his right to have an additional hearing before a third Veterans Law Judge who would be assigned to the panel to decide his case. In a faxed response received that same month, however, the Veteran waived his right to appear at an additional hearing. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). (During the July 2012 hearing, the Veteran also testified as to two claims concerning entitlement to an earlier effective date for the assignment of a 60 percent rating for service-connected left claw hand and for entitlement to special monthly compensation (SMC) based on the loss of use of the left hand. He did not provide testimony as to these claims during the January 2011 hearing. Rather, his testimony was limited to the procedural posture of the claims. A decision on these claims is the subject of a separate Board decision.) Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to compensation under 38 U.S.C.A. § 1151 for prescription drug addiction is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT An anxiety disorder with panic attacks was not shown in service, was first diagnosed several years after service discharge, and a current psychiatric disability manifested by anxiety disorder with panic attacks is not etiologically related to an incident or injury during active military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability manifested by anxiety disorder with panic attacks have not been met. 38 U.S.C.A. §§ 1110, 1153, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (the VCAA) With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Here, in an April 2008 letter issued prior to the adjudication of the claim for service connection for an anxiety disorder, VA satisfied these criteria. In the letter, the RO advised the Veteran of the basic criteria for service connection and explained VA's duties to assist him in obtaining evidence relevant to the claim. The Board also concludes VA's duty to assist has been satisfied. The Veteran identified VA and private outpatient treatment records and those records have been obtained. In addition Social Security Administration disability determination records have been obtained. He has not identified other existing relevant evidence that is not associated with the claims file. In addition, the Veteran's service treatment records and service personnel records have been obtained. During the January 2011 hearing, the Veteran alleged that portions of his service records were missing. (See January 2011 hearing transcript at 11.) Here, other that the Veteran's vague allegation, there is no indication that the Veteran's service records are incomplete. As such, the Board finds that remanding this matter to conduct searches for additional service treatment records would be futile. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). Here, the Veteran underwent a VA examination in October 2011. A supplemental opinion was issued in December 2011. The examination reports reflect consideration of the Veteran's claims folder, his current complaints, and include appropriate examination findings and diagnoses and opinions consistent with the evidence of record. The Board therefore concludes that the examination is adequate for decision-making purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); 38 C.F.R. § 4.2 (2012). Therefore, VA's duties to notify and assist have been met and the Board will address the merits of the claims. II. Analysis Here, the Veteran contends that he has an acquired psychiatric disability manifested by an anxiety disorder with panic attacks that is due to witnessing traumatic events while on active duty when temporarily stationed in Germany. In particular, he states that he was required to go to an airstrip and pick up body bags that held bodies and body parts from solders killed Vietnam. He testified that the temporary duty was in October or November 1973. (See July 2012 hearing transcript at 15-16.) He testified that thereafter he began to have troubling dreams. He described first receiving treatment for an anxiety disorder in the late 1970's or early 1980's. (See January 2011 hearing transcript at 6.) The Board has carefully considered the Veteran's contentions, but finds, however, that the preponderance of the evidence is against the claim. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Here, the Veteran's service treatment records do not show symptoms or diagnoses of any psychiatric disorders. Rather, when examined for service discharge in February 1975, no psychiatric symptomatology was noted. More significantly, the official service department records do not verify any temporary duty service to Germany, nor do they show that his job in service required the handling of dead bodies. Here, his DD-214, Certificate of Release or Discharge from Active Duty, shows that his primary military occupation specialty was as a 36K20, Tactical Wire Operator Specialist. There is no indication that this military occupation involved the handling of body bags. In addition, the DD-214 does not show any foreign service. The service personnel records include his duty assignments but do not describe any temporary duty service in Germany. Given such, the Board finds that the Veteran's contentions that he transported dead bodies in Germany are not credible nor are they afforded any significant probative weight. As regards the Veteran's contention addressing continuity of symptomatology, while he alleges treatment for anxiety disorder and panic attacks in the late 1970 and early 1980's, the first evidence documenting treatment for such is not until the early 1990's. Those records, dated in February 1993 reveal the Veteran's complaints of difficulty sleeping and being fearful of dying. The assessment was panic attacks and he was prescribed Xanax. Significantly, the records do not show continuity of symptoms since service or indicate that his symptoms are related to events while on active duty. Finally, the weight of the medical evidence addressing the etiology of a current anxiety disorder with panic attacks disability is against the claim. In this respect, the Board has considered the October 2011 VA examination and finds that it is persuasive. The examiner reviewed the Veteran's claims folder and conducted a psychiatric examination but found that it was less likely that a current psychiatric disability had its onset in service. In this respect, the examiner noted that on objective testing the Veteran was either greatly exaggerating or fabricating his psychiatric symptoms. The Board has also considered the opinion rendered by a VA staff psychiatrist in March 2006. While the psychiatrist concluded that there was an etiological relationship between panic attacks and the Veteran's service, the opinion is based on a faulty premise; namely, that the Veteran was involved in the handling of dead soldiers and body parts while stationed in Germany. See generally Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006) (the Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion). In sum, the weight of the probative evidence is against the claim. Since the preponderance of the evidence is against the claim for service connection, there is no reasonable doubt to resolve in the Veteran's favor, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Entitlement to service connection for an acquired psychiatric disorder to include anxiety disorder with panic attacks is denied. REMAND Regarding the claim for compensation under 38 U.S.C.A. § 1151 for prescription drug addiction; the Court has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of a remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. Here, in the September 2011 Remand directive, the Board found that the Veteran must be afforded a VA examination for purposes of determining whether he had a disability manifested by prescription drug addiction, and, if so, whether such was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA providers, or an event not reasonably foreseeable. Unfortunately, while the Veteran was afforded a VA mental disorders examination it did not include sufficient findings relative to the claim for compensation under 38 U.S.C.A. § 1151. The report does reveal an Axis I diagnosis of opioid dependence in remission; however, it is unclear is such is based on the Veteran's prescribed use of Lortab. In addition, the examination does not include an opinion as to whether VA care providers mis-prescribed or over-prescribed the medication. In this respect, the Veteran alleges that the drug was over-prescribed in 2005 and that he has current additional disability manifested by drug dependency. As such, the Veteran must be afforded the VA examination as previously directed. The Veteran is informed that the United States Court of Appeals for Veterans Claims has stated that a claimant has an obligation to cooperate in the development of evidence pertaining to his claim, and the failure to do so puts the claimant at risk of an adverse adjudication based on an incomplete and underdeveloped record. See Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005); see also Caffrey v. Brown, 6 Vet. App. 377, 383 (1994) (it is the responsibility of veterans to cooperate with VA); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist the Veteran in developing the facts and evidence pertinent to a claim is not a one-way street). Accordingly, this matter is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination, conducted by an appropriate medical professional, to provide an opinion as to the current nature of any prescription drug addiction disability and whether such constitutes a disability that resulted from VA treatment in the early 2000's. The examiner is advised that the Veteran alleges that Lortab was over-prescribed by VA in the early 2000's and resulted in drug dependence and addiction. As such, in addition to conducting an interview and physical examination with the Veteran, the examiner should review the VA treatment records for the period in question. After doing such, the examiner must address the following: a. Does the Veteran have a prescription drug addiction disability? Why or why not? b. If "yes," what is the likelihood (e.g. likely, as likely as not, unlikely) that such additional disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA providers, or an event not reasonably foreseeable? A complete rationale for all opinions expressed should be set forth in the examination report along with the evidence and medical principles upon which the opinions are based. 3. Thereafter, if the benefits sought on appeal remain denied, the appellant should be provided a supplemental statement of the case (SSOC) and afforded time to respond prior to the return of the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ________________________ _________________________ A. C. MACKENZIE MICHAEL J. SKALTSOUNIS Acting Veterans Law Judge Acting Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals _________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs