Citation Nr: 1342913 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 13-04 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: John. R. Worman, Attorney ATTORNEY FOR THE BOARD C. Samuelson, Associate Counsel INTRODUCTION The Veteran had active service from February 1981 until March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board notes that in September 1998, the RO denied the Veteran's claim of service connection for schizoaffective disorder. The Veteran did not file a notice of disagreement with the September 1998 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2013); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the September 1998 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2013). The Veteran's claim has not been characterized by the Board as an attempt to reopen a previously denied claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that claims that based upon distinctly diagnosed diseases or injuries should be considered distinct claims for the purposes of 38 U.S.C.A. § 7104(b) (West 2002). See Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008). The Veteran is seeking service connection for a disability that is a distinctly different diagnosis than the one at issue in her prior claim. See Ephraim v. Brown, 82 F. 3d 399 (Fed. Cir. 1996). Because the Veteran is currently diagnosed as having generalized anxiety disorder with social phobic and panic features and mood disorder, NOS, the Board construes the current appeal as a new claim, rather than an application to reopen the previous claim of service connection. Nonetheless, the Board notes that the record reflects diagnoses for various psychiatric disabilities. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court 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. Thus, while the Veteran specified that she was seeking service connection for personality disorder, the claim has been broadened to include other psychiatric disabilities and is recharacterized accordingly. A private medical record dated and received by VA in July 2012 suggests that the Veteran is unable to work due to her psychiatric disability. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Thus, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT Generalized anxiety disorder with social phobic and panic features and mood disorder, NOS had their onset in service. CONCLUSION OF LAW Generalized anxiety disorder with social phobic and panic features and mood disorder, NOS were incurred in service. 38 U.S.C.A. §§ 1131, 1132, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran essentially contends that service connection is warranted for her psychiatric disability because the disorder had its onset in service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 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"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The evidence shows that the Veteran has a current acquired psychiatric disability. In a mental status examination conducted in June 2012, a private licensed psychologist and health services provider in psychology, Dr. A.F., diagnosed generalized anxiety disorder with social phobic and panic features and mood disorder, NOS. At a VA examination conducted in September 2012, the Veteran was diagnosed with depressive disorder, NOS, with anxiety features. The Board thus finds that the Veteran has a current acquired psychiatric disability. A review of the service treatment records show that the Veteran was seen in June 1981 at the request of the training course personnel due to inconsistent performance in her pharmacy course and anxiety. The Veteran also visited the mental health clinic in February 1982 to discuss her apprehension that her Squadron Commander may consider an administrative separation. In a statement dated April 2012, the Veteran reported that she was discharged from the Air Force due to schizoaffective disorder. She reported that the onset of her illness occurred during service. During service, she reported feeling watched, worried, and inadequate. She also reported feeling isolated and having nightmares. The Veteran's close and personal friend of many years, M.B., provided a statement in April 2012 supporting the Veteran's disability. M.B. reported that during the Veteran's visit home from service in 1980-81, the Veteran seemed very different with odd behavior. M.B. stated the Veteran's whole demeanor was distressed and withdrawn and she looked thinner than usual. She reported that the Veteran always had a bright and cheerful presence that could light up a room, but during this time, she very noticeably exhibited a loss of interest in her usual activities and lacked any motivation to regain the spark she usually had. At that time, the Veteran told M.B. that she felt withdrawn and fearful of things. The Veteran also divulged that she slept very little, was restless and despondent in her thoughts, and "wasn't sure if things were 'real anymore'". The Veteran also described night terrors and abnormal outbursts of an irritable nature. M.B. observed that the Veteran had trouble focusing on her thoughts and struggled to remember names and events they had attended together. The Board finds this lay evidence to be competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In a June 2012 report, Dr. A.F., a private licensed psychologist, opined that the current the Veteran's psychiatric disability was productive of numerous psychiatric symptoms. Based on her history and his evaluation he opined that her psychiatric disability was related to service. A September 2012 VA examination report states that the Veteran's depressive disorder was not caused by or a result of any event during service. The examiner felt the Veteran appeared to have limited coping skills and difficulty adjusting to military service. He further opined that it appears likely that the Veteran's poor coping skills were related to significant substance abuse in adolescence, particularly in regard to daily cannabis abuse beginning at age 15 until she entered active duty. However, a Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 C.F.R. § 3.304(b). No psychiatric disability or symptoms were noted at entrance into service and the evidence does not clearly and unmistakably show that it was not aggravated by service. Thus, the Veteran is presumed to have been sound on entry with respect to her mental health. The VA examiner also stated that the Veteran was never diagnosed with or treated for an Axis I mental disorder during military service. He determined service records do not give any clear evidence of onset of mental illness during active duty. His rationale also noted that the Veteran stated she first sought mental health treatment in 1984 or 1985, two or three years after her discharge, at which time she reportedly experienced problems with depression. He opined that the Veteran appeared to have ongoing problems with depression, and anxiety to a lesser extent, since that time. However, a review of the service treatment records shows that the Veteran reported anxiety during service in June 1981 and February 1982. Additionally, the Veteran and the Veteran's friend, M.B., provided competent and credible accounts of the onset of symptoms in service. The negative medical opinion did not give due consideration to the lay statements of the Veteran and the Veteran's friend, M.B. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 470 (1994). As such, the Board does not find the VA examiner's opinion to be of limited probative value because it does not address the lay evidence and inaccurately reports that the Veteran did not receive mental health treatment during service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting that a medical opinion based upon an inaccurate factual premise has no probative value); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). The evidence shows that the Veteran had psychiatric symptoms in service and is currently diagnosed with generalized anxiety disorder with social phobic and panic features and mood disorder, NOS. Further, in June 2012, a private licensed psychologist and health service provider in psychology, A.F., determined that the Veteran's psychiatric symptoms appeared more likely than not as having a primary etiology in her service-connected experiences. The Veteran and her friend, M.B., have consistently, competently and credibly reported the Veteran's onset of psychiatric symptoms in service. The negative medical opinion is not probative. As such, and resolving all reasonable doubt in her favor, the Board finds that service connection for generalized anxiety disorder with social phobic and panic features and mood disorder, NOS, is warranted. ORDER Service connection for generalized anxiety disorder with social phobic and panic features and mood disorder, NOS is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs