Citation Nr: 1315896 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 11-20 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a psychiatric disability, to include Asperger's syndrome, generalized anxiety disorder, obsessive compulsive disorder, and dysthymia. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife. ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1984 to May 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied entitlement to service connection for a chronic nervous condition. The Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge in March 2013. A transcript of that hearing is of record. Although the Veteran specifically indicated that he was seeking service connection for a chronic nervous condition, a review of the record reveals that he has been noted to have other psychiatric conditions, to include Asperger's syndrome, a generalized anxiety disorder, obsessive compulsive disorder, and dysthymia. The United States Court of Appeals for Veterans Claims (Court) held that 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. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Therefore, the Board has recharacterized the Veteran's original claim as a claim for service connection for a psychiatric disorder, to include Asperger's syndrome, generalized anxiety disorder, obsessive compulsive disorder, and dysthymia as set forth on the title page. In this decision, the Board grants service connection for a generalized anxiety disorder. With respect to whether service connection may be awarded for a remaining psychiatric disorder, the Board finds that additional evidentiary development is required. Accordingly, the issue of entitlement to service connection for a psychiatric disorder, other than generalized anxiety disorder, to include Asperger's syndrome, obsessive compulsive disorder, and dysthymia, 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. VA will notify the Veteran if further action is required on his part. 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). FINDING OF FACT The Veteran's generalized anxiety disorder was at least as likely as not incurred during or as a result of his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a generalized anxiety disorder have been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for a generalized anxiety disorder. As this represents a complete grant of the benefit sought on appeal with respect to this particular issue, no further notice or assistance is required under the Veterans Claims Assistance Act of 2000 at this time, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). I. Governing Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Establishing service connection requires 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. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013); 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). Service connection may also be granted for certain chronic diseases, including psychoses, when such disability is manifested to a degree of 10-percent or more within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112(a) (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012); see also VA. Gen. Coun. Prec. 2-03 at paras. 2-3 (May 22, 2003) (collecting medical treatises and manuals describing tinnitus as a disorder of the nervous system). When service connection for chronic diseases is at issue, the second and third elements for service connection may be established by showing continuity of symptomatology. See Walker, supra. In making all determinations, the Board must fully consider the lay assertions of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v, 492 F.3d at 1376-77. The Board has a duty to assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez v. Peake, at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Analysis The Veteran contends that he began experiencing fear and nervousness as a result of being teased and ridiculed by other service members during his service. He has specifically been diagnosed with Asperger's syndrome and the theory of entitlement set forth is that the emotional abuse he sustained during service came about as a result of his Asperger's associated demeanor, including talking slowly, talking loudly, and not being able to make good eye contact, and led to the development of an anxiety disorder. Considering first the current disability requirement for service connection, the claims file contains a February 2011 statement from a VA psychiatrist wherein, his diagnoses were noted to include a generalized anxiety disorder. Generalized anxiety disorder was additionally diagnosed during a private January 2011 psychological evaluation and the diagnosis is consistently made in the Veteran's post-service VA treatment records. Based on this evidence, the Board finds that the current disability requirement for service connection has been satisfied. See Walker, supra. With respect to the next requirement for service connection, the in-service occurrence of a disease, event, or injury, the Board notes that the Veteran's service treatment records (STRs) do not reflect any treatment for or complaints of any type of nervous or anxiety condition, or any other psychiatric condition during his service. The evidence of record does; however, contains the Veteran's clear contentions that he suffered from extreme ridicule and teasing during his service as a result of his demeanor, and unwillingness to participate in certain activities with his fellow service members. During his March 2013 Board hearing, he testified that he was called many demeaning and offensive names, and that he got to the point where he just wanted to go home. He reported that he would frequently roll his eyes into the back of his head because he was unable to look people in the eye, and that he was slapped on a few occasions for doing so. He additionally testified that he declined to participate in going to strip clubs and brothels with his fellow service members. His wife testified that on one occasion, fellow service members got him drunk with a prostitute to see what would happen, thereby resulting in psychiatric disability. Based on the Veteran's credible testimony, the Board will afford him the full benefit of the doubt and concede his exposure to extreme teasing and ridicule during his service. Therefore, the second required element to establish service connection has been met. See Walker, supra. The remaining question before the Board is whether there is a nexus between the Veteran's current generalized anxiety disorder and his in-service exposure to extreme teasing and ridicule during his service. A review of the Veteran's post-service treatment records reveals that he was seen for a private psychological evaluation in January 2011. The psychologist noted the Veteran's report of feeling miserable while he was in the Army and that he had difficulty relating to others. The psychologist noted that the Veteran was never given psychiatric treatment during service and that he was given an honorable discharge. Although the psychologist's diagnoses included generalized anxiety disorder, he did not provide an opinion with respect to the etiology of the disability. VA treatment records dated from November 2010 to March 2011 provide little additional insight into the etiology of the Veteran's diagnosed generalized anxiety disorder. The record; however, contains a February 2011 opinion provided by the Veteran's treating VA psychiatrist. After noting that the Veteran's diagnoses included generalized anxiety disorder, the physician specifically found, based on discussions with the Veteran and some journaling done by the Veteran, that the Veteran's experiences during service aggravated his low self-esteem and worsened his problem with anxiety. An additional statement was provided by this same VA physician in March 2013, wherein he indicated that the Veteran described very troublesome depression and anxiety symptoms while he was in the Army that were a direct result of his Asperger's disorder. Although the VA physician's February 2011opinion would appear to indicate that the Veteran's anxiety symptoms existed prior to his service, the Board specifically notes that the Veteran's August 1983 enlistment examination failed to note any pre-existed psychiatric disability or evidence of any preexisting anxiety symptoms. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious and manifest) evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b)(2012). This presumption of soundness when entering service attaches when there has been an entrance examination during which the disability about which the Veteran later complains was not detected ("noted"). See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). If the condition in question was not noted during the enlistment examination, then VA must show by clear and unmistakable evidence both that the condition preexisted service and that it was not aggravated during or by the Veteran' service beyond its natural progression. See VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Here, there is not clear and unmistakable evidence to show that the Veteran suffered from a generalized anxiety disorder prior to active service. Thus, there is no requirement for VA to show aggravation of his disability. Accordingly, the Board will interpret the VA physician's opinion as signifying that the Veteran suffered from worsening anxiety symptoms during his service brought on by his anxiety disorder. Given the VA physician's familiarity with the Veteran's psychiatric history and his credibly reported military history, the Board finds that the VA physician was in an excellent position to be able to provide an opinion regarding the etiology of the Veteran's anxiety disorder. Accordingly, the Board finds that the VA physician's opinion is well-reasoned, well-supported, and although not precisely articulated in terms for establishing service connection, provides sufficient evidence for the Board to conclude that the Veteran's current generalized anxiety disorder was at least as likely as not incurred during his service or as a result of his in-service exposure to extreme teasing and ridicule. See Nieves-Rodriguez, 22 Vet. App. at 304 Accordingly, based on the foregoing evidence, the Board finds that all required elements to establish service connection for a generalized anxiety disorder have been met. Notably, the Veteran currently suffers from a generalized anxiety disorder, the Board has found his testimony regarding his exposure to extreme teasing and ridicule to be credible, and his treating VA psychiatrist has provided an adequate medical opinion for the Board to find that his diagnosed generalized anxiety disorder, was at least as likely as not incurred during or as a result of his active service. See Walker, supra. Accordingly, all doubt with respect to this claim is resolved in favor of the Veteran and his claim for service connection for a generalized anxiety disorder is granted. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for a generalized anxiety disorder is granted. REMAND A VA examination is needed in order to clarify the diagnoses for all psychiatric disorders, other than generalized anxiety disorder, and to obtain an opinion regarding the nature and etiology of all such psychiatric disorders. See 38 C.F.R. § 3.159(c) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), specifically lists Asperger's disorder as a pervasive developmental disorder. Service connection is potentially available for developmental diseases, but not defects, on the basis of aggravation. Quirin v. Shinseki, 22 Vet. App. 390 (2009). A medical opinion is needed to determine whether Asperger's disorder is a developmental disease that was aggravated in service or a defect that could not be aggravated. Additionally, the Veteran noted in his February 2011 claim that he was passed over for several promotions during his time in service, at least in part because of his disability. He conveyed his belief that his service personnel records (SPRs) would provide evidence in support of his contentions. Accordingly, on remand, a copy of the Veteran SPRs should be obtained and associated with the claims file. Finally, the Veteran testified during his March 2013 hearing that he began receiving VA treatment for his claimed disability in the year 2000. VA treatment records dated prior to November 2010, however, have not been associated with the claims file. The evidence additionally suggests that he has continued to receive VA treatment for his claimed disability. Accordingly, on remand, all VA treatment records dated prior to November 2010 and since March 2011 should be obtained. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain a complete copy of the Veteran's service personnel records. 2. Obtain all records of the Veteran's VA mental health treatment from the Erie VA Medical Center, dated prior to October 2010 and since March 2011. All reasonable attempts should be made to obtain such records. 3. Efforts to obtain records in Federal custody must continue until they are obtained; unless it is reasonably certain that they do not exist or that further efforts would be futile. If any requested records cannot be obtained, the Veteran should be informed of this fact, he should be told of the efforts made to obtain the records; and of any further actions that will be taken with regard to the claim, including its possible denial. 3. Thereafter, schedule the Veteran for a VA psychiatric examination. The claims file and a complete copy of this remand must be made available to and reviewed by the examiner in association with the examination. The VA examination report or addendum should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner must provide an opinion as to whether the Veteran meets the criteria for any psychiatric disorder other than a generalized anxiety disorder, to include Asperger's syndrome, obsessive compulsive disorder, and dysthymia, as prescribed by the DSM-IV. The examiner should specifically provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such psychiatric disorder, including any psychiatric disorder diagnosed since February 2011, had its onset during active service or is related to an in-service disease, event, or injury, to include the extreme teasing and ridicule that the Veteran endured during his service. In providing this opinion, the examiner is asked to specifically opine whether Asperger's disorder is considered a developmental defect, a developmental disease, or an acquired psychiatric disability. If a developmental disease, the examiner should provide an opinion as to whether the Veteran's Asperger's disorder was aggravated in service (i.e. there was a permanent increase in underlying disability). 4. Thereafter, the agency of original jurisdiction should review the claims file to ensure that the foregoing requested development has been completed. In particular, thoroughly review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. 5. If the Veteran's remanded claim remains denied, issue a supplemental statement of the case; and return this appeal to the Board, if otherwise in order. The Veteran 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). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs