Citation Nr: 1333109	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  06-00 274A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety disorder. 


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

L. Crohe, Counsel






INTRODUCTION

The Veteran had active service from February 1966 to February 1969. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Pittsburg, Pennsylvania.

This matter was previously before the Board in April 2012 at which time the claim of entitlement to service connection for an acquired psychiatric disorder, variously diagnosed as PTSD and an anxiety or panic disorder, was reopened and remanded for additional development.  It is now returned to the Board.

During the pendency of this appeal, in a June 2013 rating decision, the Appeals Management Center granted service connection for panic disorder without agoraphobia and assigned an initial 30 percent disability rating, effective September 30, 2004.

In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDINGS OF FACT

1.  In addition to the service-connected panic disorder without agoraphobia, the Veteran has also been diagnosed with depression, anxiety disorder, and PTSD.  

2.  The symptomatology of the Veteran's acquired psychiatric disability other than panic disorder, to include PTSD, depression, and anxiety, cannot clearly be distinguished from that of his service-connected panic disorder without agoraphobia, and is reasonably shown to be proximately due to or the result of service-connected panic disorder.


CONCLUSION OF LAW

The criteria for the establishment of service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety disorder, as part of the Veteran's already service-connected panic disorder without agoraphobia, have been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2013); Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Mittleider v. West, 11 Vet. App. 181, 182 (1998).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duty to Notify and Assist

VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken.  However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry.

In the decision below, the Board grants the claim of service connection for an acquired psychiatric disability, to include PTSD, anxiety, and depression.  The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Service connection

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).

In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

Service connection for certain chronic diseases, such as psychoses, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).

Psychoses are amongst the conditions identified in § 3.309(a) as chronic, per se, but the same is not true of neuroses such as PTSD, anxiety, and depression.  According to 38 C.F.R. § 3.384 , a "psychosis" includes the following specific disorders: 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.

The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases).  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).
Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2013).   Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995).  VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation.  38 C.F.R. § 3.310(b). 

The Board must assess the credibility and weight of all the evidence, including the 
medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

The establishment of service connection for PTSD has unique evidentiary requirements, generally requiring: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor.  38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997).

If it is established through military citation or other supportive evidence that the Veteran engaged in combat with the enemy, and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f) (2); 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d); Gaines v. West, 11 Vet. App. 353  (1998) (Board must make a specific finding as to whether the Veteran engaged in combat).

To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that the Veteran have actually participated in combat with the enemy.  See VAOPGCPREC 12-99.  If VA determines either that the Veteran did not engage in combat with the enemy or that the Veteran did engage in combat, but that the alleged stressor is not combat related, the Veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor.  Instead, the record must contain credible supporting evidence that corroborates the Veteran's testimony or statements.  38 C.F.R. § 3.304(f); Stone v. Nicholson, 480 F.3d 1111 (Fed. Cir. 2007); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996).  However, corroboration of every detail of a claimed stressor, including the Veteran's personal participation, is not required; rather, a Veteran only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure.  See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002).  In other words, the Veteran's presence with the unit at the time such attacks occurred corroborates his statement that he experienced such attacks personally.  Suozzi v. Brown, 10 Vet. App. 307, 311 (1997).

On July 13, 2010, VA amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor.  This revision adds to the types of PTSD claims that VA will accept through credible lay testimony alone as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify the Veteran's account.  The primary effect of the amendment of 38 C.F.R. § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." 

In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.  Jandreau v. Nicholson, 492 F.3d 1372, 1377   (Fed.Cir.2007).  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313   (Fed. Cir. 2009).

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

The Veteran asserts that his acquired psychiatric disorders, to include PTSD and anxiety, result from exposure to rocket and mortar fire at/or near Camp Bearcat in the Republic of Vietnam in late 1967 and early 1968 (during "TET").

Service treatment records dated in September 1968 show treatment for severe anxiety neurosis with symptoms of anxiety and restlessness for two months.  

The Veteran's service personnel records show that his military occupational specialty was M/wave radio repairman that served with the 327th Signal Company and was designated to serve in the Vietnam Counter Offensive Phase III and the Vietnam TET Counter Offensive.  

In an August 2007 response, the United States Armed Services Center for Unit Records Research (CURR) (now known as the United States Joint Services Records Research Center (JSRRC)) reported that review of the Operational Report/Lessons Learned (OR-LL) submitted by the 214th Combat Aviation Battalion revealed that in February 1968, Camps Martin, Cox, as well as, Bear Cat were attacked by hostile forces utilizing rockets and mortars.  An estimated 14 rounds were said to have impacted the compounds.  There were also said to have been two injuries and significant damage.  In August 2007, the JSRRC Coordinator reported that the Veteran's stressor information was verified.

Treatment records dated from April 2001 to February 2010 from Excela Health Latrobe Hospital, included assessments of anxiety, panic attacks, depression, and PTSD for which the Veteran was prescribed medications.  A March 2009 treatment record included an assessment of PTSD and anxiety disorder which seemed to be related to PTSD from the Veteran's active service in Vietnam.  

In April 2002 correspondence, Dr. J.L. reported that the Veteran was first treated for anxiety symptoms in May 1978.  Dr. J.L. noted the Veteran's two year history of active service in Vietnam, and his continued chronic anxiety symptoms and acute panic attacks.  

In April 2002 correspondence, M.S., LCSW, reported that in counseling the Veteran, it was determined that he experienced PTSD stemming from his Vietnam service.

On June 2002 VA examination, the examiner noted that Veteran's military history including being stationed at a firebase that was subject to mortar and rocket attacks, especially during the TET offensive in January and February 1968.  On the Mississippi Combat Scale, he obtained a score of 122, which was well above the score establishing PTSD, but was not consistent with the clinically represented psychological profile.  The diagnosis was chronic panic disorder; currently in very good remission (beginning in the late 1970's and not related to military service).  

A private medical record from M.C., D.O., dated in June 2004, shows that the Veteran was said to have been treated for many years for an anxiety disorder.

Vet Center treatment records dated from 2008 through 2012 show that the Veteran attended individual and group therapy related to his anxiety and panic attacks.  

Signed statements, dated in November 2004, September 2007, October 2008, and June 2009 from N.E.M., M.S., a Vet Center counselor, indicated that the Veteran had an anxiety disorder, not otherwise specified, since active service.  In the statements, N.E.M. reported that the Veteran presented with PTSD symptoms, including panic attacks, sleep disturbance, and depression.  He continued to present with chronic anxiety symptoms and took anti-anxiety and antidepressant medications.  

In March 2009 and February 2010 signed statements, J.W.G., M.D., a family practitioner, said that he had treated the Veteran for many years and recently examined him for his anxiety disorder with panic attacks.  Dr. J.G. opined that the Veteran had PTSD that caused his anxiety disorder with panic attacks that he believed was related to the Veteran's anxiety neurosis for which he was treated during active service.  In the statements, Dr. J.G. indicated that since the Veteran's September 1968 treatment for anxiety neurosis, he continued to have problems with anxiety, nightmares, and panic attacks.  

On VA examination in May 2011, the examiner opined that the Veteran did not show that he was clearly exposed to a traumatic stressor, which would meet Criteria A for a diagnosis of PTSD.  The examiner did not believe that the Veteran provided enough detail or specific information indicating a direct danger or exposure to a traumatic military experience that would meet Criteria A for a diagnosis of PTSD.  The examiner also noted that on the Mississippi Scale for Combat Related PTSD, the Veteran only scored a 99, which was well below the cut-off (107) for a diagnosis of PTSD.  The Veteran was diagnosed with panic disorder without agoraphobia, unrelated to service.  

An August 2011 private psychiatric evaluation report, S.J., M.D., shows that the Veteran was said to have exhibited feelings of his life being threatened with no possible escape many times while he was in Vietnam.  Following mental status examination, the diagnosis was depression, not otherwise specified, a need to rule out a major depressive disorder, PTSD, and a need to rule out a panic disorder without agoraphobia.
In correspondence dated in September 2012, N.E.M. reported that the Veteran had remained consistent in presentation with chronic sub-diagnostic PTSD symptoms.   

In April 2013, the prior VA examiner reviewed the claims file and opined that the claimed condition was less likely as not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner addressed the August 2011 report from Chestnut Ridge and reported that the clinician did not elicit information concerning traumatic stressors or fear of hostile military or terroristic activity.  Additionally, the Veteran would not meet the diagnostic symptom criteria for PTSD as there were no reports of persistent re-experiencing a specific traumatic event or persistent avoidance that was no associated with his previously diagnosed panic disorder.  The examiner found that no new evidence had been provided to establish a diagnosis of PTSD or any other psychiatric diagnosis related to active service.  

In a June 2013 statement, the Veteran reported that he felt intense fear and hopelessness during his in-service traumatic events (being tear gassed in the middle of the nights, the Viet-Cong blowing up a nearby ammunition dump, B52's bombing a nearby underground hospital, and artillery and gunfire firing the TET Offensive).  

In response to the Veteran's statement, in June 2013, VA sought an independent medical opinion.  VA again acknowledged that the Veteran's stressor's while serving in Vietnam have been conceded.  

In June 2013, the examiner found that the Veteran's claimed mental disorder, currently diagnosed as panic disorder without agoraphobia, was at least as likely as not incurred in or caused by service.  The examiner reasoned that the Veteran was treated for anxiety, restlessness, and anxiety neurosis in service; his primary care provider indicated that he had been treating the Veteran since 1978 for anxiety with panic attacks, and the Veteran had a current diagnosis of panic disorder without agoraphobia.  The examiner also found that it was less likely than not that the Veteran met the DSM-IV criterion for PTSD or his symptoms related to "fear of hostile or terrorist activity."  The examiner reasoned that multiple competent, qualified VA examiners evaluated the Veteran and not found him to meet the DSM-IV criterion for a diagnosis of PTSD.  The most recent VA examiner provided a throughout review of the medical evidence, including the private psychological evaluation, and found no new evidence to support a diagnosis of PTSD or for the Veteran's symptoms being related to "fear of hostile or terrorist activity."

In a June 2013 rating decision, the RO granted service connection for panic disorder without agoraphobia and assigned an initial 30 percent disability rating, effective September 30, 2004.  

In this case, the Board observes that the Veteran's service connection claim is unusual in that service connection is already established for panic disorder without agoraphobia.  However, the record reflects that the Veteran has had multiple psychiatric diagnoses including the already service-connected panic disorder without agoraphobia as well as depression, anxiety, and PTSD.

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, 23 Vet. App. at 5.  In this case, the Veteran has contended that all of his psychiatric symptomatology/impairment is related to his active service.  Moreover, under the VA rating criteria, all psychiatric disabilities other than eating disorders are rated under the general rating formula detailed at 38 C.F.R. § 4.130.  The Veteran is not seeking service connection for an eating disorder.

Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25.  Esteban v. Brown, 6 Vet. App. 259, 261 (1994).  The Court has interpreted 38 U.S.C.A. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14.  In Esteban, the Court found that the critical element was that none of the symptomatology for any of the conditions was duplicative of or overlapping with the symptomatology of the other conditions.

Therefore, the practical effect of this appellate claim is whether all of the Veteran's current psychiatric impairment are to be recognized as originating from his service-connected disability.  VA adjudicators are precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so.  See Mittleider, 11 Vet. App. at 182.

Additionally, a March 2009 treatment record from Excela Health Latrobe Hospital included an assessment of PTSD and anxiety disorder which seemed to be related to PTSD from the Veteran's active service in Vietnam.  In multiple correspondences, N.E.M. reported that the Veteran presented with anxiety symptoms as well as PTSD symptoms, including panic attacks, sleep disturbance, and depression.  Furthermore, Dr. J.G. opined that the Veteran had PTSD that caused his anxiety disorder with panic attacks that he believed was all related to the Veteran's anxiety neurosis for which he was treated during active service.

While there is no definitive opinion on whether the Veteran's PTSD, anxiety disorder, and depression symptomatology is attributable to the Veteran's service-connected panic disorder without agoraphobia, with resolution of reasonable doubt in favor of the Veteran, the Board finds that the Veteran's PTSD, anxiety disorder, and depression symptoms are part and parcel of any psychiatric disorder however diagnosed.

In view of the foregoing, the Board finds that the symptomatology of the Veteran's acquired psychiatric disorder, to include PTSD, anxiety, and depression cannot clearly be distinguished from that of his service-connected panic disorder without agoraphobia.  Therefore, service connection is warranted for acquired psychiatric disorder, to include PTSD, anxiety, and depression.  However, as detailed above, the practical effect of this decision is that all of the Veteran's psychiatric impairment is to be attributable to the already service-connected panic disorder without agoraphobia and rated under the general rating formula of 38 C.F.R. § 4.130.

ORDER

Service connection for an acquired psychiatric disability, to include PTSD, anxiety, and depression is granted, subject to governing criteria applicable to the payment of monetary benefits.



____________________________________________
DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs