Citation Nr: 1326707	
Decision Date: 08/21/13    Archive Date: 08/29/13

DOCKET NO.  07-29 818	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, claimed as panic, depression, and nerves, secondary to service-connected posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S.K.C. Boyce, Associate Counsel





INTRODUCTION

The Veteran served on active duty from February 1973 to February 1976.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia, which denied entitlement to service connection for panic, depression, and nerves.

In May 2011, the Board remanded the claim on appeal to the RO via the AMC for further development.  

In May 2013, the RO granted service connection for PTSD, claimed as depression, anxiety, and a panic disorder, effective March 23, 2011, and granted a 10 percent disability rating prior to April 10, 2012, and a 70 percent rating thereafter.

The May 2013 rating decision with attached code sheet establishes that depression (with panic attacks and nervousness) are not service connected and not subject to compensation.  Consequently, the grant of service connection for PTSD amounts to only a partial grant of the Veteran's claim for service connection for an acquired psychiatric disorder and the issue of entitlement to service connection for an acquired psychiatric disorder, including depression, anxiety, and a panic disorder, remains on appeal.  Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (a claim seeks benefits for an affliction, not a particular diagnosis; a single claim for disability compensation can encompass more than one condition).

The claim has been recharacterized in order to reflect the theory of entitlement raised by the record.  Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (the Board has a duty to address all issues reasonably raised either by the Veteran or the contents of the record).
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FINDING OF FACT

Resolving all doubt in favor of the Veteran, the evidence establishes current disabilities of depression, anxiety, and panic attacks are due to service-connected PTSD.


CONCLUSION OF LAW

The criteria for entitlement to service connection for depression, anxiety, and panic attacks, secondary to service-connected PTSD, have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants all benefits sought by the Veteran in his claim for entitlement to service connection for an acquired psychiatric disorder, including depression, anxiety, and panic attacks, secondary to service-connected PTSD.  A result, any deficiency in VA's compliance with the duty to notify and assist or the Board's May 2011 remand order is harmless error, and no further discussion of these duties is necessary.  See Shinseki v. Sanders, 556 U.S. 396, 407-410 (2009) (holding that harmless error is a case-specific determination and the Veteran carries the burden of showing prejudice); 38 C.F.R. § 20.1102 (2012) (an error or defect in any decision by the Board which does not affect the merits of the issue or the substantive rights of the appellant will be considered harmless); see also 38 U.S.C.A. §§ 5103, 5103A, 5107 (West & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a).

The Veteran claims that he suffers from panic attacks, depression, and nerves as a result of service.  In April 2012 QTC psychological examiner contracted by VA diagnosed the Veteran with PTSD.  The April 2012 VA examiner concluded that the Veteran's symptoms included depressed mood, anxiety, and panic attacks, and that all the Veteran's psychiatric symptoms were attributable to his service-connected PTSD.  

The active problems documented in the Veteran's May 2013 VA treatment records show depression and PTSD listed separately, as two distinct co-existing psychiatric diagnoses.  Furthermore, depression, anxiety, and panic disorder are independently ratable disorders under 38 C.F.R. § 4.130, the rating schedule for mental disorders.  Consequently, the Board sees no reason to find that, in this case, the VA examiner's description of depression, anxiety, and panic attacks as symptoms in the April 2012 examination report medically precludes finding that depression, anxiety, and panic attacks also constitute diagnosed psychiatric disabilities.  Madden v. Grober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is responsible for evaluating the evidence of record and assigning due probative weight); see also Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009) (distinctly diagnosed psychiatric conditions may be each be service connected even where symptomatology overlaps, but different psychiatric diagnoses sharing the same overlapping symptomatology may not be evaluated separately when assigning disability ratings). 

Therefore, resolving all doubt in favor of the Veteran, the Board finds that the evidence establishes current acquired psychiatric disabilities of depression, anxiety, and panic attacks due to PTSD on the basis of the active problems listed in his VA treatment records and the VA medical opinion of record.  38 U.S.C.A. 
§  5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102.  Therefore, service connection for depression, anxiety, and panic attacks, secondary to PTSD, is warranted.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. 
  
The Board notes that explicitly granting service connection for the remaining psychiatric disorders on appeal is in the interest of fairness to the Veteran.  Though the RO may determine that only one disability rating may be assigned for the Veteran's multiple psychiatric disorders due to overlapping symptomatology, separately awarding service connection for depression, anxiety, and panic attacks ensures that full consideration will be given to all psychiatric manifestations found to be related to the Veteran's service connected disorder on adjudication of the downstream issues of the disability rating and effective date assigned.  See, e.g., id. (the RO's assignment of a 70 percent rating for bipolar disorder and a separate noncompensable disability rating for PTSD was clear and unmistakable error where the manifestations or symptoms could not be distinguished).  Amberman, 570 F.3d at 1381.  


ORDER

Service connection for an acquired psychiatric disorder, including depression, anxiety, and panic attacks, secondary to service-connected PTSD, is granted.




____________________________________________
K. Parakkal
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs