Citation Nr: 1627695 Decision Date: 07/12/16 Archive Date: 07/22/16 DOCKET NO. 12-02 591A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from December 2003 to December 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in San Diego, California, which denied service connection for a psychiatric disorder other than PTSD (listed as anxiety and depression). An October 2014 RO decision granted service connection and a 70 percent rating for PTSD, effective January 31, 2014. In December 2015, the Board remanded the issue of entitlement to service connection for a psychiatric disorder, other than PTSD (listed as a psychiatric disorder, to include anxiety and depression, other than PTSD), for further development. The issue has been recharacterized to comport with the evidence of record. FINDING OF FACT The Veteran's current anxiety disorder, depression, and panic disorder had their onset in service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder other than PTSD, to include anxiety disorder, depression and a panic disorder, are met. 38 U.S.C.A. §§ 1110, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION 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 recurrence of symptoms. 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 Veteran is service-connected for PTSD. He is also service-connected for residuals of a left epididymitis with a hydrocelectomy, and for tinnitus. He contends that he has a psychiatric disorder other than PTSD, that is related to service, or, alternatively, that is related to his service-connected PTSD. The Veteran specifically maintains that he was treated for an anxiety disorder, as well as for depression and panic attacks, during service. He also indicates that VA examiners have related his anxiety disorder and depression to his service-connected PTSD. The Veteran essentially indicates that he suffered from psychiatric problems, including psychiatric problems other than PTSD, during service and since that time. His service treatment records indicate that he was treated for psychiatric problems during service. A November 2005 health history questions/health history report noted that the Veteran indicated that he had been bothered by feeling down, hopeless, panicky or anxious. A diagnosis was not provided at that time. A March 2006 treatment report noted that the Veteran had been seen at a civilian emergency room, seven days earlier, after experiencing a sudden onset of anxiety and heart palpitations. It was noted that the Veteran was taking a supplement called LIPO-6 for weight loss, which contained caffeine and Synephrine. The examiner reported that the emergency room physician treated the Veteran with Valium and noted some electrocardiogram changes. The examiner stated that the Veteran was told to stop taking supplements and to repeat an electrocardiogram in five days. The examiner stated that the Veteran remained asymptomatic with no repeat episodes and that a repeat electrocardiogram showed inverted T waves and was abnormal. The diagnosis was heart block, other, with an abnormal electrocardiogram with flipped T waves and ST depression. An April 2006 post deployment health reassessment report noted that the Veteran reported that he had increased irritability. He also indicated that he had been feeling down, depressed, or hopeless for a few or several days. The examiner identified concerns including PTSD symptoms and indicated that such was a major concern. The examiner reported that the Veteran was booked for an appointment for care with a provider in December 2006. A diagnosis was not provided at that time. A December 2006 treatment report related that the Veteran had problems including an anxiety disorder due to a general medical condition and panic attacks. The diagnoses did not specifically refer to any psychiatric disorders at that time. A December 2006 post deployment health reassessment report indicated that the Veteran reported that his health was poor during the past month and that he was treated for palpitations, anxiety, and for a left hydrocele. The Veteran reported that he had health concerns related to his deployment including occasional panic attacks. He stated that the panic attacks would occur once or twice a week and that they were still an issue. It was noted that the Veteran also reported feeling down, depressed or hopeless for a few or several days during the previous month. The examiner indicated that the Veteran had anxiety. There was a notation that the Veteran did not show for a subsequent appointment. Post-service private and VA treatment records show that the Veteran was treated for variously diagnosed psychiatric disorders, to include an anxiety disorder, depression, and a panic disorder. The Veteran was also treated for his service-connected PTSD. For example, an October 2008 treatment report from Kaiser Permanente, within a year of the Veteran's separation from service, noted that the Veteran complained of palpitations, anxiety attacks, and panic attacks. The diagnoses included an anxiety disorder. A January 2011 treatment report form Kaiser Permanente indicated that the Veteran reported that he had a history of panic attacks. The Veteran stated that he had a panic attack when he visited San Francisco and that he had been given Ativan which he stated caused him to be too tired. The assessment was panic attacks. A diagnosis of an anxiety disorder was also provided. A June 2011 treatment entry from Kaiser Permanente related an assessment that included a panic disorder, without agoraphobia. A September 2014 VA psychiatric examination report included a notation that the Veteran's claims file was reviewed. The diagnosis was PTSD. The examiner reported that the Veteran did not have more than one diagnosed mental disorder. The examiner indicated that the Veteran's PTSD symptoms included a depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; and an inability to establish and maintain effective relationships. A February 2015 VA psychiatric examination report included a notation that the Veteran's claims file was reviewed. The diagnosis was PTSD. The examiner indicated that the Veteran did not have more than one diagnosed mental disorder. The examiner reported that the Veteran had PTSD symptoms of a depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; and an inability to establish and maintain effective relationships. The examiner indicated that the claimed conditions of anxiety and depression were at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran's service-connected PTSD. The examiner maintained that anxiety and depression were symptoms that were often part of the symptoms cluster that made up the diagnosis of PTSD. The examiner stated that such was the case in this situation as could be seen and supported by the Veteran's VA psychiatric examination in September 2014 which indicated that anxiety and depression were part of the active symptoms in his diagnosis of PTSD. The examiner further stated that for the Veteran's claimed condition of depression, the diagnosis was already noted in the diagnosis section, and for his claimed condition of anxiety, the diagnosis was already noted in the diagnosis section. A November 2015 VA treatment report indicated that the Veteran was referred for an evaluation of PTSD and depression. It was noted that the Veteran reported that he had a depressed mood that had been up and down since 2006. The diagnoses were PTSD; a panic disorder; a major depressive disorder, recurrent and severe; and the need to rule out anxiety related to his general medical condition and occupational problems. An April 2016 statement from a psychologist for the VA, who also performed the February 2015 VA psychiatric examination, included a notation that the Veteran's claims file was reviewed. The psychologist discussed the Veteran's medical history in some detail. The psychologist commented that it was less likely than not that the symptoms of anxiety, panic, and depression had risen to a level that they were separate disorders and that such was supported by the September 2014 and February 2015 VA psychiatric examination reports indicating mild to moderate impairment. The psychologist stated that such an impairment level was not consistent with a progression that warranted another diagnosis and that the symptoms mentioned were part and parcel of the Veteran's PTSD. The psychologist reported that a VA treatment noted, dated in November 2015, indicated a diagnostic impression of PTSD, a panic disorder, and major depression by a nurse practitioner, but that such a level of pathology was not noted in the most recent VA psychiatric examination completed in February 2015. The psychologist also stated that such diagnostic impression was not the result of a diagnostic examination. The psychologist stated that, in addition, the Veteran reported to the nurse practitioner that his depression was described as a moderately depressed mood, which was inconsistent with a separate diagnosis of major depression when there was an existing diagnosis of PTSD. The psychologist reported that it should be noted that anxiety and depression were the driving symptoms of the disorder of PTSD, as without the stress caused by the experience of anxiety and depression, the other symptoms by definition would not be distressing. The psychologist further indicated that after careful review of the medical record and conflicting information, his opinion was consistent with the September 2014 VA psychiatric examination report indicating PTSD with mild impairment, and the February 2015 VA psychiatric examination report indicating that the Veteran's anxiety, depression, and panic attacks were part and parcel of his PTSD. The psychologist referred to a previous anxiety disorder diagnosis and stated that such was a common experience and existed within most examinations where a Veteran might present for treatment of symptoms of PTSD and the treating clinician, without the benefit of the overall clinical picture, would diagnose based on the singular symptoms. It was noted that such was taken into consideration in the February 2015 psychiatric examination. The psychologist stated that it was his opinion that the Veteran's controlling diagnosis was PTSD and that the symptoms of anxiety, depression, and panic attacks were part of the cluster of symptoms within the diagnosis of PTSD. The psychologist stated that the Veteran's symptoms of anxiety, depression, and panic attacks could not be separated from his diagnosis of PTSD because they overlapped. The Board observes that the medical evidence indicates that the Veteran was treated for psychiatric problems during service. His service treatment records indicate that he was diagnosed with an anxiety disorder and panic attacks. He also reported symptoms of anxiety, panic attacks, and feeling depressed on various occasions. The Veteran was also treated for an anxiety disorder, within a year of his separation from service, and he was also treated for other post-service psychiatric disorders, to include a panic disorder and a major depressive disorder. The Veteran was treated for his service-connected PTSD as well. Additionally, the Board notes that a psychologist, pursuant to a February 2015 VA examination, related a diagnosis of PTSD. The psychologist, after a review of the claims file, specifically indicated that the claimed conditions of anxiety and depression were at least as likely as not proximately due to or the result of the Veteran's service-connected PTSD. The psychologist also stated that anxiety and depression were symptoms that were often part of the symptoms cluster that made up the diagnosis of PTSD. The psychologist further maintained that for the Veteran's claimed condition of depression, the diagnosis was already noted in the diagnosis section, and for his claimed condition of anxiety, the diagnosis was already noted in the diagnosis section. In subsequent April 2016 opinions, the same psychologist, after a review of the claims file, indicated that it was less likely than not that the symptoms of anxiety, panic, and depression had risen to a level that that they were separate disorders and that such was supported by the September 2014 and February 2015 VA psychiatric examination reports indicating mild to moderate impairment. The psychologist also stated that it was his opinion that the Veteran's controlling diagnosis was PTSD and that the symptoms of anxiety, depression, and panic attacks were part of the cluster of symptoms within the diagnosis of PTSD. The psychologist stated that the Veteran's symptoms of anxiety, depression, and panic attacks could not be separated from his diagnosis of PTSD because they overlapped. The Board observes that the opinions of the psychologist for the VA are somewhat contradictory. The psychologist states that the Veteran's anxiety and depression were at least as likely as not proximately due to or the result of the Veteran's service-connected PTSD, but also indicates that it was less likely than not that the symptoms of anxiety, panic attacks, and depression had risen to a level that that they were separate disorders. The psychologist further reports that the Veteran's symptoms of anxiety, depression, and panic attacks could not be separated from his diagnosis of PTSD because they overlapped. The Board observes that the psychologist did not specifically address whether the symptoms of anxiety, depression, and panic attacks had their etiology during the Veteran's period of service. The Board observes that the Veteran was clearly noted to have reported such symptoms during service. As the psychologist indicates that symptoms of anxiety, depression, and panic attacks are part of the Veteran's already service-connected PTSD, it appears that he is relating those symptoms, at least in part, to the Veteran's period of service. The Veteran is competent to report anxiety, depression and panic attacks in service and since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, the Board finds that the Veteran's account is credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Veteran was treated for anxiety, panic attacks, and complaints of being depressed during service. He has been diagnosed with an anxiety disorder, depression, and a panic disorder after service. In light of the evidence of record and the deficiencies in the opinions provided by the psychologist for the VA, noted above, the Board cannot conclude that the preponderance of the evidence is against granting service connection for an anxiety disorder, depression, and a panic disorder. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has an anxiety disorder, depression, and a panic disorder that had their onset during service. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service connection is therefore warranted. The Board notes that, while the Veteran is already service connected for PTSD and his anxiety disorder, depression, and panic disorder symptoms may already be contemplated in the rating for that specific disorder, it is not improper to service connect other psychiatric disorders when warranted. See generally Amberman v. Shinseki, 570 F.3d 1377 (2009). As the Board has granted direct service connection, it need not address secondary service connection in this matter. ORDER Service connection for an acquired psychiatric disorder other than PTSD, to include anxiety disorder, depression, and a panic disorder, is granted. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs