Citation Nr: 1631661 Decision Date: 08/09/16 Archive Date: 08/12/16 DOCKET NO. 08-36 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a psychiatric disability to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and anxiety, also including as secondary to service-connected left shoulder disability REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served from March 1984, to September 1984, from March 1985, to March 1992, and from October 2001, to August 2002. He had additional service with a Reserve unit and a National Guard unit. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, in which the RO denied service connection for PTSD, to include anxiety. The current issue was previously before the Board and was most recently remanded in December 2014. The Board notes that the Veteran testified at a Board hearing in October 2010. The Veterans Law Judge who conducted that hearing is no longer employed at the Board; however, the Veteran did not elect to have another hearing when provided the opportunity to do so. See May 2016 Board letter to Veteran. FINDING OF FACT MDD with anxiety and panic attacks is attributable to service. CONCLUSION OF LAW MDD with anxiety and panic attacks was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 7105 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran's claim is being granted. As such, any deficiencies with regard to the VCAA are harmless and nonprejudicial. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. In addition, a psychosis will be presumed to have been incurred in or aggravated by service if it becomes manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with §4.125(a) of the applicable chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). The following provisions apply to claims for service connection of PTSD: (1) If the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, 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. (2) If the evidence establishes 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. (3) If a stressor claimed by the Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. (4) If the evidence establishes that the Veteran was a prisoner-of-war under the provisions of §3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, 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. (5) If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury. Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). There must be competent evidence of a current disability; evidence of a service-connected disability; and competent evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). There must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Medical records from October 2001 to November 2001 reflected that the Veteran was seen for panic attacks. He was diagnosed as having anxiety with panic attacks. From April to July 2008, the Veteran reported having panic and anxiety over financial issues. He was diagnosed as having MDD; rule out PTSD. Subsequent records continued those diagnoses. In August 2008, an examiner also indicated that the Veteran had PTSD, but did not specifically address PTSD criteria. In October 2008, the Veteran reported that his PTSD (as referred to by him) was worse. In January 2009, the Veteran was afforded a VA examination which diagnosed MDD. At that time, the Veteran reported an onset of anxiety in 2001 which he attributed to the 9/11 events and happenings within his family. He related feeling depressed most of the time with suicide attempts in 2005 and 2006 which were precipitated by losing his job. He endorsed feelings of hopelessness/helplessness related to his unemployment. He also reported anxiety related to his inability to find work. In March 2009, the Veteran was diagnosed as having PTSD, MDD, dysthymic disorder, generalized anxiety disorder, and panic disorder. The Veteran indicated that he had depression and panic disorder in service. In April 2009, it was noted that the Veteran had diagnoses of PTSD, panic disorder without agoraphobia, and dysthymia. In May 2009 medical records, it was noted that the Veteran had a mood disorder with depression and anxiety. In April 2010, the Veteran was afforded a VA examination. At that time, the Veteran reported that he experienced life threatening events as a fuel truck driver in the Gulf War. The diagnosis was MDD and anxiety disorder, NOS, with panic. The examiner noted that the Veteran continued to contend that his current depression and anxiety were related to his experiences of depression and anxiety in service. He related that depression and anxiety were not secondary to his shoulder disability to include on the basis of aggravation. In an August 2010 addendum, the examiner noted that throughout the mental health examination in April 2010, the Veteran reported he has had significant problems with depression and anxiety since the Gulf War. His claim stated that he had experienced depression while in the military and began having panic attacks after returning from the Gulf War. During the assessment, he indicated that although he was somewhat disappointed concerning his shoulder's effect on his ability to do work, he indicated overall his depression and anxiety had been a consistent problem since military. The examiner stated that in reviewing the records, the Veteran did mention occasionally that he experienced increased pain as a result of his PTSD and depression and that his shoulder did result in some increase in his depressed mood and anxiety. Overall, the records indicated that the Veteran reported he had been depressed and anxious since the Gulf War and he did not identify his shoulder as a significant source of depression or anxiety. Although he might experience a down mood occasionally due to his shoulder pain, the mood change did not appear to be significant. Therefore, the examiner opined that it was less likely than not that the Veteran's depression and anxiety were secondary to or aggravated by the service-connected shoulder pain. In a March 2010 letter, a Veterans Home provider indicated that he was a combat veteran from the Gulf War and suffered from depression with psychosis, PTSD, anxiety, and panic. In an October 2010 letter, the Veteran's sister indicated that the Veteran had exhibited mental health illness since service, as confirmed by VA, to include severe depression, PTSD, and panic attacks. VA records dated in 2009-2010 continued to document psychiatric treatment and diagnoses, including PTSD, MDD, and anxiety. The Veteran was afforded a VA examination in March 2011; he was diagnosed as having MDD and an anxiety disorder. The examiner opined that these diagnoses were not related to service. The examiner indicated that the Veteran met the diagnostic criteria for MDD, but there did not appear to be a clear association between combat experiences and MDD. The examiner further indicated that there did not appear to be any exacerbation of the Veteran's current mental health conditions caused by his service-connected disabilities. The Veteran did not meet the criteria for PTSD. The Veteran reported a stressor of being afraid of being shot due to friendly fire. He also reported that his truck was shot at after an incident where he had refueled. He also reported childhood stressors. Thus, there were stressors, but the Veteran did not indicate experiencing unwanted memories of these events. He also did not indicate efforts to avoid thoughts or feelings about his military stressors. Moreover, there did not appear to be a clear association between the Veteran's combat stressors during the Gulf War and most of his symptoms and the onset of the Veteran's symptoms were variable. The majority of the symptoms he endorsed occurred 10 years or more after his service in the Gulf in the early 1990s. In addition, there were inconsistencies. The Veteran originally reported feeling anxiety after 9/11 in 2001, but then later reported that depression began during the Gulf War or in the years after 2001. A March 2012 assessment reflected that the Veteran had PTSD and a bipolar disorder. The PTSD individual criteria were not indicated. In June 2012, the Board remanded this case. In pertinent part, the Board noted that the March 2011 VA examiner's use of the phrases "clearly related" and "clear association" raised a question as to whether the examiner believed there was in fact some association between current disability and military service, pointing out that for an award of service connection to be made, it need only be shown that it is at least as likely as not, i.e., a probability of 50 percent or more, that a disability is related to service. Thus, clarification was requested. At this juncture, the Board notes that the March 2011 examiner was clear in the assessment that the criteria for PTSD were not met. In a September 2012 addendum to the March 2011 examination report, the examiner indicated that the majority of the Veteran's psychological difficulties stemmed from characterological issues primarily features of borderline personality disorder as well as his depression. The Veteran did meet the diagnostic criteria for MDD as he reported prolonged depressed mood, sleep difficulty, reduced interest and pleasure in activities, reduced energy, and poor concentration. However, there did not appear to be a clear association between the Veteran's combat experiences and his depressive disorder. The Veteran also met the diagnostic criteria for alcohol dependence which appeared to be in full remission at present and there also did not appear to be a clear association between his history of alcohol abuse and his combat experiences in service. Regarding the issue of the Veteran's other service-connected disabilities (i e limited motion of arm and tinnitus), there did not appear to be any exacerbation of his current mental health conditions caused by his service-connected disabilities. In a December 2014 remand, the Board reviewed the September 2012 addendum, noting that the Veteran had opined that the Veteran's MDD and anxiety disorder were less likely as not related to any period of military service. However, the examiner then referred to the rationale provided in the March 2011 report and then reiterated the rationale stated in the March 2011 examination report. Notably, although the examiner used language consistent with the VA standard of proof, in reiterating his previously stated rationale, the examiner again included opinion that there was no "clear association between the [V]eteran's combat experiences and his depressive disorder." He also did not, as requested, provide an explanation for his negative nexus opinions. Further, the explanation noted that although the Veteran had during a 2009 VA examination reported the onset of anxiety symptoms to have occurred during service in 2001, the Veteran had not described any such events during a March 2010 psychological evaluation. A review of the March 2010 VA psychological evaluation report, however, revealed that the Veteran did report having a "breakdown'" during training at Fort Bragg shortly after the 9/11 attacks. He further indicated at that time that he was unable to recover completely from this breakdown and had continued to experience severe bouts of depression and anxiety. The Board found that the probative value of the VA examiner's negative nexus opinion was undermined by the fact that the Veteran did in fact report anxiety symptoms beginning in 2001 at the time of the March 2010 psychological evaluation. Further, by merely reiterating the previously stated rationale, it was unclear whether the examiner indeed considered the entirety of the Veteran's military experiences. On remand, in June 2015, a medical opinion was obtained. The VA examiner reviewed the prior evidence of record. The examiner noted the prior VA examinations and opinions. The examiner indicated that while all of these examiners agreed that the Veteran's symptoms were related primarily to other stressors, they did not completely discount the limited contribution of his active duty military experiences to his mental health condition. In addition, the examiner noted the instances when the Veteran had reported psychiatric symptoms. The examiner also discussed the Veteran's non-military stressors. The examiner concluded that while it appeared the majority of his symptoms were due to other factors, the Veteran's active military service did account for some portion of his depression and anxiety. With regard to PTSD, the examiner noted that while the diagnosis of PTSD was mentioned repeatedly throughout the Veteran's records, in both government and community treatment settings, there was no assessment in any of the records which showed the Veteran met the criteria for PTSD. Some symptoms were identified at times, though full criteria were never met. With regard to his service-connected disabilities, the examiner opined that there was not an etiological connection to his psychiatric impairment. In a December 2015 opinion, the same VA examiner discussed which symptoms are related to each diagnosis. She stated that the Veteran had been diagnosed with the following mental health conditions: PTSD, MDD, and anxiety disorder NOS. She then listed below are the diagnostic criteria for these three conditions. She reported that the Veteran did not meet all diagnostic criteria for all conditions, but he did report many. The symptoms he reported at any given time varied depending on his situational stressors. As had been noted by multiple examiners who had seen this Veteran, all conditions could be explained by a variety of stressors which were unrelated to the military. She felt that it was impossible to determine which symptoms were related to which individual condition due to symptom overlap. At issue appeared to be which symptoms might be due to anxiety disorder NOS (symptoms of which are listed under generalized anxiety disorder) as it was her opinion in the most recent records review that some of his symptoms of anxiety could be related to his military service. The Veteran's PTSD was not related to military service. As such, symptoms of reexperiencing, avoidance, negative cognitions, arousal and reactivity were not a result of his military service. The Veteran's MDD was not related to military service. As such, depressed mood, feelings of worthlessness and suicidal ideation were not a result of military service. The following symptoms could be due to either PTSD or anxiety: sleep disturbance and irritability. However, she stated that it was impossible to determine to what extent the symptoms might be due to PTSD versus anxiety disorder, NOS. The following symptoms could be due either depression or anxiety: fatigue, and agitation/ restlessness. She indicated that it was impossible to determine to what extent the symptoms might be due to depression versus anxiety disorder, NOS. This left the following symptoms as being considered due specifically to anxiety disorder, NOS: excessive worry, muscle tension. These were symptoms which were often described in individuals with PTSD. She indicated that it would be difficult to make a case that this individual's excessive worry and muscle tension are due to anxiety disorder, NOS versus PTSD. The Board notes that this December 2015 opinion is inconsistent in some areas with this examiner's prior June 2015 opinion. Specifically, in June 2015, the examiner found that the Veteran did not meet the criteria for PTSD in the record. The Board notes that this finding is supported in the record. While PTSD diagnoses were documented, the PTSD criteria were only specifically addressed in the March 2011 report which indicated in detail why the criteria were not met. With regard to depression and anxiety, the June 2015 indicated that there was some etiological connection to service. This assessment is also consistent with the record since the October to November 2001 records documented panic and anxiety and the Veteran consistently reported depression thereafter. However, in her December 2015 opinion, the examiner indicated that the MDD was not related to service despite her prior assessment. Thereafter, in a January 2016 rating decision, the RO determined that service connection for psychosis for the purpose of establishing eligibility to treatment was warranted. The RO noted that a determination of service connection under 38 U.S.C. 1702 is for the purpose of providing eligibility for hospital and medical treatment for Veterans of World War II, Korean Conflict, or Vietnam era; or for Gulf War Veterans who develop an active psychosis or any active mental illness during or within two years from the date of separation from such service or within two years of the end of the war period, whichever is earlier. The RO indicated that the Veteran was discharged on August 31, 2002 and a psychosis/mental illness was first diagnosed on November 28, 2001. Thus, entitlement to treatment was established because a psychosis/mental illness was diagnosed within the required period of time. The Board finds that in affording the Veteran all reasonable doubt, MDD with anxiety and panic attacks is attributable to service based on the 2001 records and the June 2015 opinion, regardless of the confusing December 2015 addendum. The record does not establish that the Veteran has PTSD or a psychosis, but rather the recent opinions reflected that the other diagnoses are appropriate. Because service connection is warranted on a direct basis for MDD with anxiety and panic attacks, there is no need to address secondary service connection. ORDER Service connection for MDD with anxiety and panic attacks is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs