Citation Nr: 1327677 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 11-12 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for an anxiety disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from August 1970 to January 1974, from September 1974 to June 1976, and from October 3, 1996 to November 7, 1996. The present matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In that decision, the RO found that new and material evidence had been submitted to reopen the Veteran's previously denied claim of service connection for an anxiety disorder. The claim was otherwise denied on the merits. In April 2010, the Veteran testified before an RO hearing officer. A transcript of that hearing is of record. The U.S. Court of Appeals for Veterans Claims (Court) has held that in claims involving unrepresented Veterans, the Board must broadly construe claims, and in the context of psychiatric disorders must consider other diagnoses for service connection when the medical record so reflects. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In June 2008, the Veteran sought to reopen her claim for an anxiety disorder. The Veteran claimed service connection for posttraumatic stress disorder (PTSD), and anxiety disorder. In the above June 2009 rating decision, the RO denied both a claim of service connection for anxiety as well as a claim for service connection for PTSD. The Veteran's February 2010 notice of disagreement (NOD) reflects specific disagreement with the RO's denial of the claim of service connection for an anxiety disorder. As such, a claim of service connection for PTSD is not currently in appellate status. In a July 2013 Informal Hearing Presentation, the Veteran's representative alleged clear and unmistakable error (CUE) in the RO's January 2007 rating decision and the denial of service connection for anxiety. The representative also alleged that the Veteran was unable to pursue full time employment secondary to anxiety. Furthermore, in her June 2008 reopened claim, as noted above, the Veteran claimed service connection for mental disorders to include but not limited to PTSD and anxiety. VA treatment records associated with the appeal period reflect the Veteran's diagnosis not only for a generalized anxiety disorder but also for panic disorder without agoraphobia as well as for claustrophobia. The matters of CUE in the January 2007 RO rating decision, a total disability rating based on individual unemployability (TDIU), and service connection for panic disorder without agoraphobia and for claustrophobia, have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. By a January 2007 rating decision, the RO denied the Veteran's claim for service connection for an anxiety disorder. The Veteran was notified of the decision but did not appeal. 2. Evidence received since the RO's January 2007 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for an anxiety disorder, and it raises a reasonable possibility of substantiating the claim. 3. The Veteran has been diagnosed with a generalized anxiety disorder that is traceable to her active duty service while deployed to Incirlik Air Base, Turkey. CONCLUSIONS OF LAW 1. A January 2007 rating decision that denied service connection for an anxiety disorder is final. 38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2012). 2. New and material evidence has been received, and the Veteran's claim for service connection for an anxiety disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The Veteran has an anxiety disorder that is the result of injury or disease incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence In its January 2007 rating decision, the RO denied the Veteran's claim for an anxiety disorder noting that the disorder had neither occurred in nor was caused by active military service. The Veteran was notified of the January 2007 rating decision and the denial of her claim. She did not appeal the decision. Thus, the Board finds the January 2007 rating decision to be final. 38 U.S.C.A. § 7105. In June 2008, the Veteran sought to reopen her claim. Under pertinent legal authority, VA may reopen and review a claim which has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that when determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the evidence received could, if the claim were reopened, reasonably result in substantiation of the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to the Court's holding in Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist to provide a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Since the January 2007 rating decision, the evidence received includes the Veteran's April 2010 hearing testimony, medical opinions from the Veteran's private physician, as well as an opinion from a VA clinical psychologist. The Board finds that the above-noted evidence to be new, and also finds the evidence to be material. The evidence provides support for the Veteran's claim that her anxiety disorder is related to a period of active duty service, in particular, service at Incirlik Air Base in Turkey. As such, the Board finds that the evidence is sufficiently material to reopen the Veteran's claim. Shade, 24 Vet. App. at 117. Accordingly, the Board finds that evidence received subsequent to the January 2007 rating decision is new and material and serves to reopen the claim for service connection for an anxiety disorder. Service connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (2004). The Veteran claims that her currently diagnosed generalized anxiety disorder is the result of her military service in Turkey and in Kuwait with the 132nd Fighter Wing of the Iowa Air National Guard. Military orders from the Iowa Air National Guard, digitally signed by the Secretary of the United States Air Force, reflect the Veteran's assignment to Incirlik Air Base in Turkey from October 3, 1996 to November 7, 1996. The military orders, dated in September 1996, note the authority for the assignment as 10 U.S.C. § 672(d). In a "Remarks" section of the orders, it is noted that the Veteran was being called to active duty. Otherwise, of record is a Line of Duty Determination (NGB Form 348), dated in January 1997, which documents the Veteran's treatment for pneumonia on November 1, 1996 by the 39th Medical Group at Incirlik Air Base. There is evidentiary support in the record that the Veteran deployed to Incirlik Air Base and that she was on active duty during her deployment. In a December 2009 VA treatment record, the Veteran reported having difficulties with anxiety following her return from Turkey. She also reported that following her return home she found she got very anxious when in enclosed spaces and just felt overall anxious most of the time. In a January 2012 private medical opinion, the Veteran's private physician noted that he first began treating the Veteran for anxiety in 1996. He commented that at the time, the Veteran was having several issues contributing to anxiety including increased stress from work, menopause-related problems, and thyroid problems. In particular, an August 1996 private treatment record from the physician notes the Veteran's mood swings as well as her considerable stress at work to lose weight. Treatment included the use of Paxil. In January 1997, the Veteran was noted to be using Xanax. In a report of September 2006 VA examination, the examiner noted that the Veteran had served 27 years of "military active duty," and that the Veteran did not specifically link the onset of anxiety to her deployment to Turkey. The Veteran reportedly identified that a change in work assignment had resulted in a high stress level due to an increase in responsibilities. The examiner's impression identified the Veteran as having a generalized anxiety disorder and that it appeared that the condition arose while the Veteran was serving on active duty. In a July 2008 VA mental health comprehensive note, the Veteran was noted to describe her deployment to Turkey as being in a high stress area where suicide bombings were not an infrequent occurrence. She also described the terrible condition of orphanages she visited while she was in the country. In September and December 2008 VA mental health notes, the Veteran reported that she did not have anxiety symptoms or fear of enclosed spaces prior to her deployments in Turkey and Kuwait. A March 2010 opinion statement from the Veteran's treating private physician notes her treatment history. The statement also notes the following, I have reviewed the records that she brought in from her counseling at the VA and discussed her military experiences with her. She has reported multiple traumatic experiences that she had during her military deployments. She experienced multiple stresses including being a female in the military when this was not the norm, seeing death and maiming of others, security concerns, and seeing children suffering. She continues to be bothered by these memories. Recalling these experiences increases her stress levels. It is my medical opinion that [the Veteran's] long term anxiety problems are a direct result of her military deployment and that her anxiety diagnosis would be considered service related. In a report of February 2011 VA examination, the VA examiner noted that the Veteran had retired after "27 years of active military service," and additional civilian government employment. The examiner also noted the following, [The Veteran] was deployed to Incerlik [stet] Air Base in Turkey in 1996, and soon after, briefly deployed to Kuwait in 1997. She described feeling vulnerable and concerned about potential threats and inadequate preparation and planning in regard to dealing with attacks. She reports that she was aware of at least three instances in which suicide bombers had attempted to come on base and had been stopped at the gate. She was also aware of a suicide bombing at a nearby civilian police station. This knowledge contributed to her sense of vulnerability and foreboding. . . . [S]he also noted being appalled by [the] condition of orphans with whom she came in contact in Turkey. Following review of the evidence, including the March 2010 private physician opinion statement, the VA examiner found that the Veteran did not meet the diagnostic criteria for PTSD. It was otherwise found that the symptoms reported were more consistent with a generalized anxiety disorder. Furthermore, the February 2011 examiner commented that per reports of the onset of the symptoms and the Veteran's premorbid history, it was more likely than not that the anxiety symptoms developed during the Veteran's military service, particularly during deployments to Turkey and Kuwait. The Veteran's private physician provided an addendum to his March 2010 opinion statement in January 2012. In the statement, the physician noted that the Veteran had not told him of her military experiences prior to 2010. However, he still continued to conclude the Veteran's anxiety was directly related to her military service. The physician noted that even though the Veteran had anxiety problems prior to her deployment, the stresses she encountered during the deployments exacerbated her condition leading to her present worsened condition. The Board finds that the evidence is at least in equipoise as to whether the Veteran's current anxiety disorder can be traced to her active duty deployment to Incirlik Air Base, Turkey. There is a lack of any treatment for anxiety during the Veteran's deployment to Turkey. There is also a lack of any reference to anxiety or related symptoms from submitted pages of the Veteran's diary reportedly written while she was in Turkey. Furthermore, anxiety symptoms in 1996 were related by the Veteran's private physician to work-related stress, menopause, as well as thyroid problems. However, these facts were considered by the February 2011 VA examiner in providing his opinion. Otherwise, the private physician, as noted above, still opined the Veteran's current anxiety disorder was related to her period of active duty deployments. The Board finds persuasive that the February 2011 VA examiner has related the Veteran's generalized anxiety disorder to her experiences in Turkey. Furthermore, the February 2011 VA examiner's opinion is supported by the Veteran's private physician, and both clinicians have based their opinions on a records review and the Veteran's reported history. The history reported by the Veteran has remained essentially consistent. In essence, the evidence is in equipoise, and resolving all doubt in the Veteran's favor, service connection for an anxiety disorder is warranted. The evidence reflects a current diagnosis of generalized anxiety disorder, competent lay evidence of in-service anxiety-related symptomatology, and medical evidence linking a current diagnosis of a generalized anxiety disorder to the Veteran's period of active duty in Turkey. As such, service connection for an anxiety disorder has been established. 38 U.S.C.A. § 5107. ORDER New and material evidence having been received, the claim of entitlement to service connection for an anxiety disorder is reopened. Service connection for an anxiety disorder is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs