Citation Nr: 1319805 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-18 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, diagnosed as panic disorder with agoraphobia and major depressive disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran had active service from June 1970 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 decision of the New York, New York, Regional Office (RO). In August 2012, the Board remanded the case for further development. While the disabilities claimed by the Veteran are severe agoraphobia and depression, claims of service connection for psychiatric disability encompass claims for all psychiatric disorders that are reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2010). Thus, the Veteran's claim for encompasses panic disorder and his other various psychiatric diagnoses during the appeal period. In the August 2012 decision, the Board also found that the May 2003 rating action did not become final and remains pending. 38 C.F.R. § 3.156(b) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992); Buie v. Shinseki, 24 Vet. App. 242, 252-52 (2010); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As such, the May 2003 rating action is the proper determination certified for appellate review. Subsequent to the February 2013 supplemental statement of the case, the Veteran submitted additional evidence with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2012). The Board may thus consider such newly received evidence. FINDING OF FACT Panic disorder with agoraphobia and major depressive disorder, had its onset in service. CONCLUSION OF LAW Panic disorder with agoraphobia was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for panic disorder with agoraphobia and major depressive disorder, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. 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). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). 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. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. 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, 1376-77 (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); Jandreau. The Board is charged with the duty to assess the credibility and weight given to 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). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 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. The Veteran contends that the symptoms of his psychiatric disability have been recurrent and worsening since separation. The evidence shows that the Veteran has a current acquired psychiatric disability. Specifically, treatment records show that he was treated for "phobia" as early as 1981 and diagnosed with panic disorder with agoraphobia and alcohol dependence in September 1987. Treatment for this diagnosis has continued to the present, sometimes paired with diagnoses of depression or major depressive disorder. In January 2013 a VA examiner diagnosed panic disorder with agoraphobia, chronic moderate major depressive disorder, and alcohol dependence. The Board thus finds that the Veteran has a current acquired psychiatric disability. The STRs are silent as to any psychiatric complaints, treatment, or diagnoses. His entrance examination, dated October 1969, and separation examination, dated January 1971, show normal psychiatric and psychological evaluations. The Veteran went AWOL from the Naval Station Great Lakes ("Great Lakes") in late November 1970 and was arrested by civil authorities 19 days later. He was released to military control and was discharged in January 1971 under honorable conditions. Personnel records show that he was not recommended for reenlistment due to an inability to adapt to military service and substandard performance. The Veteran has reported that he was treated for psychiatric complaints while he was stationed at Great Lakes from June 1970 to January 1971, and at the Albany VA Medical Center (VAMC) from February 1971 to September 1987. Regrettably, in January 2013 VA issued a formal finding that these records are unavailable for review. The earliest treatment record shows that he was treated for "phobia" from March 1981 to April 1981 by private psychiatrist Dr. P. VA treatment records show that in May 1987 he had been seeing a psychiatrist at "CHP" and had been on medications, including anti-depressants. He reported a history of panic attacks. In September 1987, the Veteran was hospitalized at a VA facility for depression, panic attacks and intoxication. On admission, he reported being treated in service for panic attacks. Treatment notes show a history of panic attacks and agoraphobia, that he was currently being seen at a Phobia Clinic in Troy, and that he had been receiving treatment for agoraphobia with Dr. P. He had also formerly received lithium from CHP. The Veteran reported having worsening problems with his nerves for 15 years. On discharge he was diagnosed with panic diagnosis with agoraphobia and alcohol dependence. He was hospitalized again at a VA facility in March 1991 for depression and anxiety and was diagnosed on admission with panic disorder and alcohol dependence. He reported having panic attacks since age 19. The Board notes that the Veteran was this age in 1970-1971, while in service. Private treatment records show continued treatment for panic disorder, panic attacks, and agoraphobia from May 1990 to October 1997 by several different private providers. The Veteran was also sometimes diagnosed with depression or major depressive disorder. A May 1994 letter from one psychiatrist stated that the Veteran's alcohol use resulted from his severe panic attacks. Private treatment records show continued treatment from February 2002 to July 2002. In a lay statement dated December 2002, the Veteran described having symptoms of panic attacks while in the Navy, being told he was "homesick," and given Valium and other tranquilizers. In addition to the two hospitalizations, VA treatment records show fairly consistent mental health treatment from February 2005 to the present. In March 2005 the Veteran reported a history of agoraphobia lasting more than 30 years that was worsening. He had not seen a physician in two years and had run out of his medications. In April 2005 he reported that since he was 19 he had been to cognitive therapists, psychologists, and psychiatrists, and that Xanax was the only thing that seemed to help. He reported that he thought that his experience in the military at boiler tender school started his panic attacks. His first clinical contact was in 1971 at the VA Stratton/Albany Mental Health Clinic. The Board notes that these treatment records have been found to be unavailable. He estimated beginning to see private providers around 1976. In a treatment record dated February 2007 he again described the onset of panic disorder while in service, when he had what he described as a panic attack that was diagnosed as "homesickness." The Veteran stated that he continued to have panic from that point forward. In his November 2009 substantive appeal, the Veteran stated that he was given Valium in service to treat his condition. At the January 2013 VA examination, the examiner concluded that the Veteran's acquired psychiatric disorder was less likely than not related to military service. His rationale was that there is no evidence that the Veteran was diagnosed with a psychiatric condition in service, and that his behavior during service (i.e., getting arrested) could not have been due to panic disorder. Additionally, there was no evidence of onset within one year of separation from service. Despite the fact that the Veteran's STRs are negative for objective evidence of a psychiatric diagnosis, he is competent to report a history of psychiatric symptoms that began in service. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. Moreover, the mere fact that his assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). In its capacity as a finder of fact, the Board finds the Veteran is credible as to his reports of psychiatric history to various medical providers over the years. In records of his September 1987 hospitalization, March 1991 hospitalization, October 2002 claim application, December 2002 statement, November 2003 statement, April 2005 VA treatment record, March 2005 psychiatric consult, February 2007 VA treatment record, and November 2009 substantive appeal, the Veteran consistently reported that his psychiatric symptoms had their onset during service and have progressively worsened ever since. His description of where, when, and how he was treated in service, and what triggered his symptoms has also been consistent. Caluza. Therefore, the Board finds that throughout the appeal period the Veteran competently, credibly, and consistently reported that his panic disorder symptoms began during his military service and have continued to the present time. The VA examiner's negative nexus opinion is based on a lack of documentation in the claims file of any diagnosis of psychiatric condition during or within one year of service. However, the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible. Buchanan. The examiner does not explain why the psychiatric symptoms that were clearly documented in the record by March 1981 could not have had their onset in service, especially given the Veteran's lay statements. Moreover, the examiner provided no explanation for his conclusive statement that the Veteran's behavior during service could not have been due to panic disorder. Here, the negative medical opinion did not give due consideration to the Veteran's competent and credible account of the onset of symptoms in service, and their recurrence thereafter. The examiner provided no reason for rejecting the Veteran's lay history, especially in light of the fact that some treatment records dated in the early 1970s have been found unavailable. Based on the foregoing, the Board does not find the VA examiner's opinion probative. Moreover, when there is evidence that a Veteran's service records have been lost or destroyed, as is the case here, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington, 19 Vet. App. at 369-70. The evidence shows that the Veteran has consistently, competently, and credibly reported having an onset of psychiatric symptoms in service and since discharge. Buchanan, Jandreau. Early treatment records are unavailable but symptoms are documented as early as March 1981. He has been diagnosed with panic disorder with agoraphobia since September 1987. The negative medical opinion is not probative. Resolving all reasonable doubt in his favor, the Board finds that service connection for acquired psychiatric disorder, diagnosed as panic disorder with agoraphobia and major depressive disorder is warranted. ORDER Service connection for acquired psychiatric disorder, diagnosed as panic disorder with agoraphobia and major depressive disorder, is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs