Citation Nr: 1323573	
Decision Date: 07/24/13    Archive Date: 08/01/13

DOCKET NO.  07-00 119A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD) and major depressive disorder (MDD).


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1978 to October 1981, had a period of active duty for training (ADT) from January 1991 to May 1991, and served on active duty from June 1996 to December 1996, and from January 2002 to December 2002.  

This appeal arises from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Buffalo, New York, which separately denied service connection for anxiety/depression, memory loss, inability to sleep, anger management, and speech difficulty.  This matter was recharacterized as service connection for an acquired psychiatric disorder, to include anxiety, depression, memory loss, inability to sleep, anger management, and speech difficulty and was remanded by the Board in April 2011 for additional development.  

In an August 2010 rating decision (which was apparently not in the record reviewed by the Board in April 2011, although it is deemed constructively of record), the RO granted service connection for PTSD and MDD based in part on the findings of a February 2010 VA examination report. 

In May 2013 the Veteran waived initial RO consideration of additional VA treatment records associated with the Virtual VA eFolder in August 2012.  Thus, there is no prejudice to the Veteran and the Board will consider these documents herein.  

The issues of service connection for bilateral chondromalacia and for a left shoulder disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  See Veteran's March 2011 written brief presentation.  Additionally, the Board notes a December 2010 statement from the Veteran initiating a TBI (traumatic brain injury) claim, also not adjudicated by the Agency of Original Jurisdiction.  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 


FINDING OF FACT

The Veteran is currently in receipt of service connection for PTSD and MDD.  Thus, the Veteran's symptoms of anxiety/depression, memory loss, inability to sleep, anger management, and speech difficulty have been determined to be service connected.


CONCLUSION OF LAW

Service connection for a psychiatric disability other than PTSD and MDD is dismissed as no justiciable case or controversy is before the Board at this time.  38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 4.14, 19.4, 20.101, 20.200, 20.204 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Legal Criteria, Factual Background, and Analysis

Service connection may be granted for disability due to 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 be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).
 
To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability.  See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system).  Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record.  Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

In the case at hand, it is important to note that the Veteran was service-connected for PTSD and MDD during the pendency of this appeal.  It is also important for the Veteran to understand that he is service-connected for his acquired psychiatric disability and the accompanying symptomatology (to include memory loss, sleep difficulties, speech difficulties, anger problems, anxiety, and depression), in total, based on all psychiatric problems associated with service.  There is no indication in the record that the RO is attempting to distinguish between the Veteran's service-connected PTSD, MDD and any other psychiatric disorder diagnosed during the period of the appeal.  The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14.

The General Rating Formula for Mental Disorders evaluates Psychotic Disorder, not otherwise specified, 38 C.F.R. § 4.130, Diagnostic Code 9210; Generalized Anxiety Disorder, 38 C.F.R. § 4.130, Diagnostic Code 9400; Anxiety Disorder, not otherwise specified, 38 C.F.R. § 4.130, Diagnostic Code 9413; Conversion Disorder, 38 C.F.R. § 4.130, Diagnostic Code 9424; MDD, 38 C.F.R. § 4.130, Diagnostic Code 9434; and PTSD, 38 C.F.R. § 4.130, Diagnostic Code 9411, identically.  Under 38 C.F.R. § 4.130, the following ratings are provided for these psychiatric disabilities:  

A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication, a noncompensable (0 percent) rating.

Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication, a 10 percent rating.

Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), a 30 percent rating.

Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, a 50 percent rating.

Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships, a 70 percent rating.

Total occupational and social impairment, due to such symptoms as:  gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, a 100 percent rating.  38 C.F.R. § 4.130.

The Board notes that the use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings.  Id.  The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation.  Id.

The VA examinations in January and February 2010 upon which his grant of service connection for acquired psychiatric disability was based reveal that the entirety of his symptomatology, including anxiety/depression, memory loss, inability to sleep, anger management, and speech difficulty, are encompassed in the diagnoses of PTSD and MDD.  The January 2010 examiner concluded that the Veteran's PTSD is likely complicated by atypical symptoms of depression and a conversion disorder.  He noted that attention problems may also "reflect residual developmental attention weaknesses that are being exacerbated by psychological distress and post-combat stress symptoms."  The February 2010 examiner stated that the Veteran met the diagnostic criteria for PTSD, and that the Veteran further described problems with depression that appear "primarily intertwined with his PTSD-related distress and stems primarily form intrusive memories of military experiences."  The examiner also suggested that the Veteran's neurological symptoms associated with conversion disorder are also attributable to psychological factors.   

Based on the record as it now stands, the Board finds that the claim for service connection for an acquired psychiatric disorder other than PTSD or MDD cannot be granted because all of his psychiatric symptomatology was considered in the disabilities for which the RO awarded service connection in the August 2010 rating decision; here, PTSD and MDD.  Stated differently, there is no case or controversy pending before the Board as contemplated by 38 U.S.C.A. §§ 7104, 7105 and 38 C.F.R. § 19.4 as to any other acquired psychiatric disorder.  In the absence of any justiciable question, the claim must be dismissed.


ORDER

The appeal for service connection for a psychiatric disability other than PTSD and MDD is dismissed.



______________________________________________
M.C. GRAHAM
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs