Citation Nr: 1318119 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 03-17 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, variously diagnosed. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from October 1986 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which reopened a previously denied claim seeking service connection for an anxiety disorder. In March 2007, a hearing was conducted at the RO before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the Veteran's claims folder. In September 2007, the Board remanded this matter for additional development and reconsideration on a denovo basis, citing an intertwined claim seeking service connection for posttraumatic stress disorder (PTSD). In May 2010, and again in January 2012, the Board remanded this matter to address continued due process concerns and the RO's failure to comply with the earlier remand directives. The issue on appeal has been recharacterized to properly reflect the Veteran's variously diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled); McClain v. Nicholson, 21 Vet. App. 319 (2007). FINDING OF FACT The Veteran has been diagnosed with anxiety disorder, not otherwise specified, and PTSD during the course of this appeal, and these conditions cannot be reasonably disassociated from his military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, variously diagnosed, have been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. 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; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Pursuant to 38 C.F.R. § 3.303(b), VA may award service connection where a claimant can demonstrate "(1) that a condition was 'noted' during service; (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). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2011); a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed inservice stressor occurred. 38 C.F.R. § 3.304(f). Effective July 12, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. The final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved psychological or psycho-physiological state of fear, helplessness, or horror. Compare 38 C.F.R. § 3.304(f) (2009) with 75 Fed. Reg. 39843 (2010). 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 Veteran served on active duty in the Army from October 1986 to May 1991, including service in the Persian Gulf from September 1990 to March 1991. A September 1987 psychiatric treatment report noted that the Veteran attended a stress management class. The Veteran's post service treatment reports reveal multiple psychiatric diagnoses, including anxiety disorder and PTSD, during the course of this appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim, even if the disability resolves prior to adjudication). A December 1998 private treatment report noted an assessment of anxiety. The report noted that the Veteran had been taking Xanax. A January 1999 VA treatment report noted the Veteran's complaints of stress, anxiety, and difficulty sleeping. The report noted that he has had these symptoms since his discharge from the service, and that they have been increasing in severity lately. A February 1999 VA treatment report noted that the Veteran worked as a middle school teacher, that he was very sensitive to noise, and that noisy kids make him anxious. A March 1999 VA treatment report concluded with a diagnosis of anxiety disorder, not otherwise specified. It also noted that the Veteran was planning on seeking new employment at the end of the school term. A March 1999 statement from the Veteran indicated that he had experienced moderate stress and anxiety since returning home from Desert Storm. A June 1999 statement from the Veteran's buddy noted that since the Veteran was discharged from service, he had become very moody and easily loses his concentration. The Veteran's buddy also indicated that the Veteran had missed several days in the past year due to severe stress. A June 1999 VA examination for mental disorders noted the Veteran's history of anxiety attacks and survivor's guilt. The report noted that he has a serious problem with loud noise, and that loud sounds unnerve him. The Veteran indicated that he tries to avoid anything that reminds him of the chemical attacks while he was stationed in the Persian Gulf, such as sirens. Following a mental status examination, the report concluded with a diagnosis of anxiety disorder, not otherwise specified. A February 2001 VA psychiatric consultation report noted that the Veteran had underwent psychiatric testing. Following a mental status examination, the report concluded with a diagnosis of anxiety disorder, not otherwise specified. In August 2002, a VA examination for PTSD was conducted. The report of this examination noted the Veteran's complaints of anxiety, difficulty sleeping and work-related stress since his discharge from the service. A mental status examination revealed that the Veteran does suffer from sleep impairment and anxiety attacks. The report concluded with a diagnosis of anxiety disorder, not otherwise specified. It also listed a global assessment of functioning (GAF) score of 58. In October 2003, a VA examination for PTSD was conducted. The examination report noted that the Veteran did not come under direct enemy fire while serving in the Persian Gulf, but that he was near SCUD missile attacks and had to wear a gas mask and protective clothing at times due to suspected chemical attacks. The Veteran indicated that he witnessed the bodies of two soldiers killed in a SCUD missile attack. He reported having nightmares and flashbacks related to his military service, that there had been no periods of remission of symptomatology since his discharge from military service, and that his symptoms have been exacerbated since our involvement with Iraq again. Following a mental status examination, the report concluded with a diagnosis of PTSD, and listed a GAF score of 45. In support of this conclusion, the VA examiner noted that the Veteran had been exposed to traumatic events in which he witnessed and was confronted with actual or threatened death both to himself and others; and that his response to this was intense fear, helplessness and horror. The report also noted that he has recurrent and intrusive thoughts about these events, and attempts to avoid thoughts or feelings associated with this trauma. In May 2005, a VA treatment report noted the Veteran's complaints of depression, anxiety and difficulty sleeping. The report concluded with a diagnosis of PTSD gulf war (desert storm), and depressive disorder, not otherwise specified. In August 2009, a VA examination for PTSD was conducted. The examination report noted the Veteran's current complaints of anxiety and social isolation. Following a mental status examination, the report concluded with a diagnosis of anxiety disorder due to labyrinthitis. In support of this conclusion, the VA examiner stated that it was "suggested by the timing." The VA examiner also noted that the Veteran did not meet the criteria for PTSD "[a]t this time" and that his PTSD symptoms were more severe at the time of his October 2003 examination. In December 2010, a VA examination for mental disorders was conducted. Following a mental status examination, the report concluded with a finding of no diagnosis. As for PTSD, the VA examiner noted the Veteran's complaints of feeling anxious approximately once per week, and that he had difficulty sleeping. The examiner noted that he had reported discontinuing psychiatric treatment in 2009 because the anxiety symptoms had decreased. In May 2012, a VA examination for PTSD was conducted. Following a mental status examination, the report concluded with a finding of no psychiatric diagnosis. The VA examiner noted that the Veteran has some anxiety on occasion, but that it does not appear to rise to the level of a mental disorder. While there is some evidence in the claims file indicating that the Veteran's psychiatric disabilities may have resolved, earlier evidence in the Veteran's claims file, dated during the course of this appeal, include diagnoses of PTSD and anxiety disorder, not otherwise specified. Moreover, the evidence is at least in equipoise as to whether these psychiatric disabilities are related to the Veteran's military service. 38 C.F.R. § 3.304(f) (2012); McClain, 21 Vet. App. 319 (2007) (holding that a current disability exists if the diagnosed disability is present during the pendency of the claim, even if the disability resolves prior to adjudication). While the VA examiner in August 2009 opined that the Veteran's anxiety disorder was secondary to his nonservice-connected labyrinthitis, other evidence, including the Veteran's statements and testimony, lay statements submitted in support of the Veteran's claim, and notations in medical treatment records indicate that his psychiatric symptoms were present long before his labyrinthitis. Moreover, this evidence, which is not contradicted by any other evidence, indicates that his psychiatric symptomatology is dated back to his military service. Resolving all doubt in the Veteran's favor, service connection for a psychiatric disorder, alternatively diagnosed as anxiety disorder, not otherwise specified, and PTSD, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for an acquired psychiatric disorder, variously diagnosed, is granted. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs