Citation Nr: 1322040 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 07-01 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), including panic disorder without agoraphobia, major depressive disorder, and generalized anxiety disorder. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. In July 2008, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing is associated with the claims file. At the July 2008 hearing, the Veteran withdrew his claims of entitlement to service connection for hearing loss, tinnitus, and posttraumatic stress disorder (PTSD). As such, those issues no longer remain on appeal. In December 2008, the Board remanded this appeal for additional development. All requested development was conducted and the appeal has been returned to the Board for adjudication. Thereafter, in October 2010, the Board denied entitlement to service connection for a psychological disorder, diagnosed as panic disorder without agoraphobia. The Veteran appealed the Board's October 2010 decision to the United States Court of Appeals for Veterans Claims (Court). After litigation of the issues, the Court issues a Memorandum Decision in which the Court vacated the October 2010 decision and remanded the issue on appeal for readjudication consistent with the decision. The appeal has been returned to the Board for adjudication. FINDING OF FACT The most competent, credible, and probative evidence of record shows that (1) the Veteran has a current diagnosis of panic disorder without agoraphobia, major depressive disorder, and generalized anxiety disorder, (2) the Veteran experienced anxiety symptoms during and after service, and (3) the Veteran's current psychiatric disabilities were incurred as a result of his active military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, variously diagnosed as panic disorder without agoraphobia, major depressive disorder, and generalized anxiety disorder, have been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2011); Hupp v. Nicholson, 21 Vet. App. 342 (2007). As will be discussed in detail below, the Board finds that service connection for an acquired psychiatric disorder is warranted. Therefore, a full discussion of whether VA met these duties is not needed as no prejudice can flow to the appellant from any notice or assistance error based upon the full grant of the benefit sought. Legal Criteria and Analysis The Veteran is seeking service connection for an acquired psychiatric disorder other than PTSD. At the outset, the Board notes that this claim was previously characterized as entitlement to service connection for a psychological disorder, diagnosed as panic disorder without agoraphobia. However, as discussed below, the evidentiary record shows the Veteran has been recently diagnosed with panic disorder without agoraphobia, major depressive disorder, and generalized anxiety disorder. See June 2010 VA examination report; May 2013 evaluation from Dr. M.C. The Court has 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 (2009). As such, the Board finds that the Veteran's claimed psychiatric disability includes all psychiatric disabilities identified in the evidentiary record, including panic disorder without agoraphobia, major depressive disorder, and generalized anxiety disorder, as reflected on the first page of this decision. In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). VA regulations provide that psychosis will be presumptively service connected if it manifests to a compensable degree within one year after discharge. See 38 C.F.R. §§ 3.307, 3.309 (2012). For these purposes, "psychosis" includes brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. 38 C.F.R. § 3.384 (2012). While the Veteran has been diagnosed with a psychiatric disability, the Veteran does not have a psychosis, as defined by VA law and regulations. 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted, the evidence shows the Veteran has a current diagnosis of panic disorder without agoraphobia, major depressive disorder, and generalized anxiety disorder. As such, the first requirement of a service connection claim has been met. Turning to the second requirement, i.e., in-service incurrence of a disease or injury, the Veteran has asserted that he first manifested an anxiety disorder while on active duty as a result of exposure to significant in-service distress and racial discrimination. He has specifically asserted that he incurred harsh treatment onboard the USS Ranger from 1969 to 1967 and that he was harassed and threatened with bodily harm due to racism. See February 2006 Notice of Disagreement; August 2005 VA examination report; May 2005 VA Form 21-526. The service treatment records (STRs) show that, in May 1970, the Veteran reported that he was having difficulty handling his interpersonal relationships within his unit/division. The examiner noted that he had "no severe psychiatric difficulty." In February 1972, the Veteran reported nervousness, insomnia, and headaches, while a history of anxiety, depression, and crying was noted on his last/prior cruise. The psychologist noted that there was a suggestion of "racial friction and questionable conscientious objector;" however, mental status examination revealed no functional organic or thought process disorder and no suicidal/homicidal ideations were present. Instead, the Veteran was noted as being a bright, sincere young man who had "apparently attempted to function effectively before and during service." Nevertheless, loss of tolerance for frustrations of shipboard life and denial of opportunities for rate advancement were noted. The psychologist stated that the Veteran's symptoms "probably" reflected his increased irritability and disappointment regarding his three years aboard ship. The diagnosis was situational adult reaction. The psychologist went on to explain that the Veteran was increasingly socially conscious and that he felt pressured by his perception of chronic environmental conditions. The STRs do not contain any additional or subsequent complaints, treatment, or findings related to a psychiatric disorder. In fact, the November 1972 separation examination reflects that psychiatric evaluation was normal and no defects/diagnoses relating to a psychiatric disorder, to include a panic disorder, were noted. Based on the foregoing, the Board finds there is evidence of anxiety and other psychiatric symptomatology during service. Given the lack of evidence showing additional or subsequent treatment for psychiatric symptoms or disorder following the in-service treatment noted above or at separation from service, however, the Board finds that a chronic psychiatric disability is not shown during or at separation from service. Nevertheless, the evidentiary record also reflects that the Veteran manifested anxiety symptoms after service, as the evidence shows the Veteran was treated at an inpatient VA facility for adjustment disorder secondary to the loss of his job in December 1985. At that time, the Veteran reported that he felt confused and that he had feelings of anger, depression, and morbid thoughts of shooting his ex-boss. The inpatient summary indicated that this was his first psychiatric hospitalization and that he had no previous psychological treatment outside of seeing a psychiatrist "one time in the service." VA medical records dated from January 1986 to October 1986 show continued treatment for depression and anxiety as related to his employment situation. See e.g., VA Progress Note, February 28, 1986. An October 1986 VA Transfer Summary report indicated that the Veteran was treated for psychotherapy at the Mental Hygiene Clinic from February 1986 to September 1986, and that he was hospitalized in December 1985 because of homicidal ideation. It was again noted that there was no prior psychiatric history, but that in 1985, he became angry about his treatment by former employers and was hospitalized. Subsequent VA outpatient treatment records dated from 2002 to 2006 show continued treatment for panic disorder/panic attacks (without agoraphobia). See also June 2010 VA examination report. In May 2013, Dr. M.C. reviewed the record and evaluated the Veteran, after which he rendered a diagnosis of major depressive disorder, generalized anxiety disorder, and panic disorder without agoraphobia, noting that it is not medically possible to differentiate between the level of impairment due to each diagnosis, as they have combined together to cause profound disability for the Veteran since 1972 when he first manifested symptoms. Dr. M.C. provided a very detailed report, in which he ultimately opined that the current diagnoses are directly related to the Veteran's active military service. He specifically stated the events occurring on the USS Ranger, namely the Veteran's experiences with constant racial harassment, likely caused and definitely aggravated the psychiatric illness that he developed during service and that persists to this day. In making this determination, Dr. M.C. noted that, while the Veteran was diagnosed with situational adult reaction in service, his review of the record reveals that the Veteran's symptoms in 1972 would have met the DSM-IV criteria for a depressive episode associated with major depressive disorder, as well as generalized anxiety disorder. Dr. M.C. noted that these symptoms were present in 1972 and seem to have been present for the last forty years. In this regard, Dr. M.C. documented the Veteran's report that there has been no period of time from 1972 to the present when he was free of anxiety, fear, sadness, or other related symptoms. Dr. M.C. addressed the lack of evidence continuity of treatment or symptomatology, stating that it is not uncommon for psychiatrically ill patients to lose continuity of care. He also noted that the symptoms the Veteran presented in service and after service in 1985 were similar in that they relate to difficulties functioning in an occupational setting, and he stated that he believes the Veteran's psychiatric illness first manifested in 1972 during his active duty service. In evaluating this claim, the Board finds that the May 2013 medical opinion from Dr. M.C. is competent, credible, and probative evidence in support of the Veteran's claim, as it shows that the Veteran's current psychiatric disabilities were likely incurred as a result of his military service. The Board notes that Dr. M.C. reviewed the Veteran's service and medical records prior to rendering his opinion and provided a detailed rationale in support of his conclusion, which is supported by the other evidence of record. In this context, the Board again notes that there is evidence of anxiety symptoms during and after service and, while there is no medical evidence showing continuity of treatment, there is competent lay evidence of continuity of related symptomatology after service. In evaluating the ultimate merit of this claim, the Board notes that Dr. M.C.'s May 2013 opinion addresses all relevant facts in this case and is not outweighed by any other medical evidence or opinion of record. In this regard, the Board notes that there are medical opinions of record that weigh against the Veteran's claim, as they reflect that the Veteran's psychiatric disability was less likely as not related to military service. See VA examination reports dated April 2006 and June 2010. While the VA examinations reports are considered competent medical evidence, the medical opinions contained therein are afforded no probative value because they are not based upon all correct, relevant facts, namely evidence showing symptoms of anxiety during service and prior to 1990. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Therefore, based on the foregoing, the Board finds that the most competent, credible, and probative evidence supports the grant of service connection for an acquired psychiatric disorder, variously diagnosed as panic disorder without agoraphobia, major depressive disorder, and generalized anxiety disorder. Accordingly, the Veteran's claim for that benefit is granted. ORDER Entitlement to service connection for an acquired psychiatric disorder, variously diagnosed as panic disorder without agoraphobia, major depressive disorder, and generalized anxiety disorder, is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs