Citation Nr: 1316613 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 09-07 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder and PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from August 1969 to April 1972. This matter comes to the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In April 2011, a Board hearing was held at the RO before a Veterans Law Judge (VLJ) who has since left the Board. The transcript is of record. In August 2011 the claim was remanded for further development. In November 2012 additional relevant evidence was received by the Board. In light of the outcome herein, failure to waive RO consideration is not prejudicial. In March 2013, a new Board hearing was held at the central office in Washington, DC before the undersigned; the transcript is of record. The Veteran's virtual VA file has been reviewed. FINDING OF FACT An acquired psychiatric disability, to include anxiety disorder, is related to service. CONCLUSION OF LAW An acquired psychiatric disability, to include anxiety disorder, was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Board finds that the competent evidence of record establishes that the Veteran's acquired psychiatric disorder, to include anxiety disorder is due to service. The Veteran testified that in service he experienced some stressful events to include seeing a decapitated body, going swimming with a fellow serviceman (identified as a Native American) who drowned and being held accountable for it, and a separate swimming incident in Greece where he was knocked unconscious by a wave. He testified that he began to have nightmares in service after working guard duty at a cemetary. The Board finds that the Veteran is competent to report things that he witnessed in service, such as a decapitated body and going swimming with someone who drowned, as these are incidents that are subject to lay observation. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran is also competent to report symptoms he experienced through his five senses, such as nightmares. The Board finds the Veteran's testimony as to these in-service incidents to be credible. Lay statements were also received. In a July 2008 buddy statement, a fellow serviceman reported being stationed at Wiesbaden Air Force Base along with the Veteran. The serviceman reported that an automobile accident had occurred in late 1971 or early 1972 in which the driver, a sergeant in the communication section of the unit, had been decapitated. The Veteran testified that he saw the decapitated body as he drove the wrecker which cleaned up the accident. There are two positive medical opinions of record. At a July 2012 VA psychiatric examination the Veteran was diagnosed with major depressive disorder, recurrent, mild, and anxiety disorder, nos. The examiner found that the Veteran did not meet the full criteria for PTSD. The examiner reviewed the claims file and medical records and opined that the Veteran's anxiety disorder, nos is at least as likely as not caused by or a result of his experiencing a variety of traumatic events, although he did not meet the full criteria for PTSD at the time. The examiner then cited the Veteran's report of working guard duty for a morgue at Fort Polk, Louisiana which was scary for him and which he reported having nightmares about the bodies in the morgue but that the event did not qualify for PTSD as he did not fear for his life nor was he in danger of physical injury or death. The examiner also noted the Veteran's report of responding to the scene of a motor vehicle accident where the victim was decapitated, and that he had a buddy statement to support this. The examiner noted that although it would be traumatic if he saw the decapitated body, his symptom presentation did not meet the full criteria for PTSD. The examiner noted that the Veteran reported nightmares and being short tempered but did not endorse avoidance criteria or hyper arousal criteria. The examiner also found that the Veteran's depressive disorder was less likely as not related to service as the Veteran reported that his symptoms began in 2002. In a November 2012 private letter Dr. RS reported that he was a board certified psychiatrist and the Veteran was under his care and diagnosed the Veteran with anxiety, depression, and PTSD. DR. RS reported that he had personally reviewed the Veteran's medical history, VA medical records, and the Veteran's report of in-service events. Dr. RS found that the Veteran has no other known risk factors that may have precipitated his current condition, and opined that the Veteran's current condition is the direct result of his experiences in military service. The VA examiner provided a positive opinion that the Veteran's anxiety disorder was at least as likely as not related to traumatic events, and then identified traumatic in service events. The private psychiatrist provided a positive opinion that the Veteran's current condition, which includes diagnosis of anxiety, depression, and PTSD, was the direct result of experiences in service. There are no opinions against a finding that the Veteran's anxiety disorder is due to service. The Board finds that the weight of the evidence supports a relationship between anxiety disorder and in-service incidents, and a request for another medical opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The weight of the competent medical evidence is in the Veteran's favor, there is no doubt to be resolved. Service connection for an acquired psychiatric disability to include anxiety is warranted. As an anxiety disorder and PTSD are evaluated by VA identically, no further discussion is required. The nature and extent of the disability related to service is not before the Board at this time. ORDER Service connection for an acquired psychiatric disorder, to include anxiety disorder, is granted. ____________________________________________ JOHN C. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs