Citation Nr: 1504865 Decision Date: 02/02/15 Archive Date: 02/09/15 DOCKET NO. 11-10 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, anxiety, and depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1980 to December 1980. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from May 2010 and June 2012 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. During the pendency of the appeal, jurisdiction of the Veteran's case was transferred to the RO in Houston, Texas. The Board will briefly clarify the relevant procedural history. The Veteran filed her initial claim of entitlement to service connection for depression in November 2009 and properly initiated an appeal of the May 2010 RO denial; however she ultimately withdrew the issue at a December 2010 decision review officer (DRO) hearing. At the December 2010 DRO hearing, she specifically claimed entitlement to service connection for PTSD, and later clarified through an April 2011 statement that she was claiming service connection for PTSD, depression, anxiety, and a psychological/psychiatric disorder. The June 2012 RO decision denied entitlement to service connection for PTSD and the Veteran properly initiated an appeal. The October 2012 statement of the case (SOC) addressed the denial for PTSD, as well as depression and anxiety separately. The Veteran's December 2012 VA Form 9 substantive appeal indicated her intent to appeal all issues included on the October 2012 SOC. Subsequently, in May 2014, the Board framed the issued as entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, anxiety, depression, and PTSD. The Board subsequently granted service connection for PTSD, but despite such, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), indicating her disagreement with the Board's failure to specifically address, and therefore its implicit denial of, her claim of entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, anxiety, and depression. In August 2014, the Houston RO issued a decision, thereby implementing the May 2014 Board decision, which specifically granted service connection for PTSD with depression and schizoaffective disorder as directly related to military service. (emphasis added). Subsequently, in December 2014, the Court issued its Order vacating the Board's May 2014 decision only to the extent that it denied entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, anxiety, and depression, and remanding the Veteran's claim consistent with the parties' December 2014 Joint Motion for Remand (JMR). Therefore, although the December 2014 Court order remanded a claim of entitlement to service connection for an acquired psychiatric disorder, to include depression specifically, the Board notes that the August 2014 RO decision specifically granted service connection for PTSD with depression and schizoaffective disorder as directly related to military service. (emphasis added). As such, the Board finds that a claim of entitlement to service connection for depression is no longer before the Board, as entitlement to that specific benefit sought on appeal is in fact already established; thus, there is no question or controversy remaining for the Board to consider with respect to that disability. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. § 20.101 (2014). The Veteran testified before a DRO at the December 2010 hearing, as well as before the undersigned Veterans Law Judge (VLJ) at a Central Office hearing held in Washington, District of Columbia, in November 2013. Transcripts of these hearings have been associated with the claims file and reviewed by the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran has reported symptoms of anxiety and there is evidence of a diagnosis of anxiety disorder, not otherwise specified, during the appeal period. 2. The Veteran has not been diagnosed with schizophrenia during the appeal period. 3. The symptomatology of the Veteran's acquired psychiatric disability, to include anxiety, cannot clearly be distinguished from that of her service-connected PTSD with depression and schizoaffective disorder. CONCLUSION OF LAW The criteria for service connection for entitlement to service connection for an acquired psychiatric disorder, to include anxiety, have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014); Clemons v. Shinseki, 23 Vet. App. 1 (2009); Mittleider v. West, 11 Vet. App. 181 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C.A. § 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014). However, given the Board's favorable decision herein, any error with respect to VA's duties to notify and assist is harmless, and no further discussion of such duties is required. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1131 (West 2014); 38 C.F.R. § 3.303(a) (2014). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded. See id.; see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). The Veteran asserts that an acquired psychiatric disorder, to include schizophrenia, anxiety, and depression, is related to her active service, to include an in-service military sexual trauma wherein she reports that she was assaulted by five men following a slip-and-fall accident around October 1980. As noted above, the Board finds that service connection for PTSD with depression is already in effect; therefore, the Board need not address the specific acquired psychiatric condition of depression further herein. After separation from service, private treatment records from April 2000, April 2002, and August 2002 reflect the Veteran's diagnosis of either schizophrenia or schizophrenic disorder, paranoid type. As noted above, the Veteran first filed her claim of entitlement to service connection for depression in November 2009. Thereafter, the Veteran first received VA mental health treatment in December 2009, at which time she reported a twenty to thirty year history of prior private mental health treatment. Thereafter, in January 2010, she reported a history of psychotic symptoms with episodes of mania and chronic depression following her in-service fall and resulting injury - described as a traumatic brain injury (TBI) in VA treatment notes. Following a full evaluation, the initial impression was schizoaffective disorder, bipolar type, with symptoms consistent with chronic depression and some mania. In February 2010, the Veteran was diagnosed with schizoaffective disorder and a TBI. In May 2011, the Veteran was seen for a therapy session for treatment of schizoaffective disorder and anxiety disorder, not otherwise specified (NOS). Following a March 2012 VA psychiatric examination, the Veteran reported her history of mental health treatment since service discharge for various conditions including bipolar disorder, anxiety, depression, manic depression, schizophrenia, and schizoaffective disorder. Following a full psychiatric evaluation, the VA examiner diagnosed her with PTSD, depression, and schizoaffective disorder. Significantly, the examiner stated that it was not possible to differentiate between which of the Veteran's psychiatric symptoms were attributable to each of the Veteran's diagnosed mental health disorders because her "[s]ymptoms overlap to the degree that delineation of the relative contributions of each disorder would constitute a matter of pure speculation." The examiner ultimately concluded that the Veteran's PTSD was at least as likely as not caused by sexual assault while in the military and that her level of occupational and social impairment with regard to all mental health diagnoses was total occupational and social impairment. Thereafter, VA treatment records reflect that from approximately October 2013 to December 2013, the Veteran participated in a stress and anxiety management group therapy program. A January 2014 statement by the Veteran reported her ongoing symptoms including anxiety and depression. Based upon the evidence discussed above, the Board first finds that the Veteran has not been diagnosed with schizophrenia at any time during the appeal period; thus, service connection is not warranted for that psychiatric disorder. See Brammer, 3 Vet. App. at 225; see also Gilpin, 155 F.3d 1353. However, resolving reasonable doubt in favor of the Veteran, and with consideration of the probative opinion of the March 2012 VA examiner, the Board finds that the Veteran's psychiatric symptoms of anxiety, as reported by the Veteran and previously diagnosed during the pendency of the appeal, and service-connected PTSD with depression and schizoaffective disorder, overlap to the extent that, for VA rating purposes, all psychiatric symptoms related to those diagnoses are attributed to the Veteran's service-connected acquired psychiatric disorder. See generally Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant's favor and the symptoms in question attributed to the service-connected disability). As such, the claim of entitlement to service connection for an acquired psychiatric disorder, to include anxiety is granted, and the Veteran is thereby entitled to service connection for PTSD with depression, schizoaffective disorder, and anxiety. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include anxiety is granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs