Citation Nr: 1637892 Decision Date: 09/27/16 Archive Date: 10/07/16 DOCKET NO. 12-13 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Veteran represented by: Stephen Vaughn, Agent ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from October 1980 to August 1989, December 1990 to June 1991, and April 2007 to September 2007, including service in the Persian Gulf, with periods of reserve service. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was remanded in January 2015. FINDING OF FACT The Veteran's current anxiety disorder (panic disorder) manifested due to his active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability have been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) 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 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it pertains to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See 38 C.F.R. § 3.159(a)(2) ("Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person."). Additionally, for veterans who have served 90 days or more on or after December 31, 1946, certain chronic diseases, such as psychosis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The second and third elements of service connection may also be satisfied under 38 C.F.R. § 3.303(b), by the submission of (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran entered active duty on April 16, 2007. On April 19, 2007, the Veteran sustained a vasovagal syncope /laceration facial region. An Informal Line of Duty Determination concluded that the syncope occurred in the line of duty. 07/07/2015 VBMS entry, Military Personnel Record. Subsequent treatment records reflect treatment for a syncopal episode which by history was consistent with a diagnosis noted as neurocardiogene syncope. 05/31/2007 VBMS entries, Medical Treatment Record-Non-Government Facility. A December 2007 record reflects the Veteran's complaints of stress related to working on the police force and being worried about being kicked out of the reserves due to medical problems. There was an assessment of situational adjustment reaction. 02/09/2012 VBMS entry, Medical Treatment Record-Non-Government Facility. In January 2008, the Veteran sought emergency room treatment for an anxiety attack. 05/31/2007 VBMS entry, Medical Treatment Record-Non-Government Facility at 2. In February 2008, the Veteran reported that he was still having anxiety about his health and dying. Id. Correspondence dated in February 2008 from the Veteran's private physician to a Colonel in the United States Air Force Reserves (USAFR) reflects that in May 2007 the Veteran was evaluated for the syncopal episode. The physician stated that during the evaluation the described feelings of hopelessness and it was recommended that he follow up with the military for further psychiatric evaluation. He was seen again in July 2007 and while the physician felt he was 90 percent improved, he felt that the stress of his job was contributing to his feeling of palpitations and episodes of dizziness. Though his treatment did not completely eliminate his symptoms, the physician was concerned that because of his occupational stress that he is experiencing and what he perceives to be a high stress fear may result in more syncope. Given the nature of his duties, unexpected syncope could jeopardize his life in certain conditions or that of his partner in the military. 05/31/2007 VBMS entry, Medical Treatment Record-Non-Government Facility (05/07, 02/08). Correspondence dated in March 2015 from the Veteran's treating VA physician reflects that the Veteran initially sought VA mental health treatment in 2010. The Veteran reported significant anxiety and panic attacks, onset early 2008. The Veteran reported that he has been exposed to numerous traumas both in his military service and as a LEO. However, he did not begin having anxiety symptoms until 2008, after fainting and suffering a severe laceration to his facial/neck area resulting in a lot of blood loss. Due to confusion, the EMS was slow to arrive and he began having panic attacks after this incident. The VA physician stated that the Veteran has been seen for nine individual therapy sessions, focusing on alleviating panic and other anxiety symptoms. His anxiety symptoms generally revolve around safety concerns (his own and loved ones) and being overly anxious about the possibility of injury or harm. This anxiety has risen to a level that, per his report, has interfered with day to day life and his occupational functioning (e.g having difficulty wearing a vest or being in a closed room to take a hearing test). The examiner stated that he meets the criteria for panic disorder, and also has other anxiety features including claustrophobia. The examiner found no evidence suggesting that he had an anxiety disorder prior to the above mentioned incident in 2008 while on active duty. The examiner opined that it is more likely than not that his current anxiety disorder (panic disorder) is caused by this service-related incident. 03/16/2015 VBMS entry, Medical Treatment Record-Government Facility. In a February 2016 addendum opinion, the VA physician corrected the year of the incident to reflect 2007. 02/22/2016 VBMS entry, Medical Treatment Record-Government Facility. A September 2015 VA examiner opined that the Veteran's unspecified anxiety disorder and unspecified depressive disorder less likely as not had an onset during active duty. The examiner noted that the Veteran reported that he began to experience anxiety in early 2008 and he denied experiencing depression. The examiner referenced records from 2010 and 2011 in support of the opinion that his mental condition is not due to military service. The Board notes that in formulating the negative opinion it does not appear that the September 2015 VA examiner considered the in-service April 2007 syncope incident nor the records in December 2007 and early 2008 reflecting treatment for situational adjustment reaction and anxiety. Thus, such opinion is entitled to limited probative weight. As detailed hereinabove, per the Veteran's treating physician, the Veteran was experiencing hopelessness following the April 2007 syncope episode and while he was still on active duty. Three months after separation from active duty he was assessed as having situational adjustment reaction and was treated for anxiety in January and February 2008. Per the Veteran's treating VA physician, his anxiety is related to the syncope episode suffered during active service. Thus, based on the above and affording the Veteran the benefit of the doubt, the Board finds that service connection is warranted for an acquired psychiatric disability. ORDER Entitlement to service connection for an acquired psychiatric disability, diagnosed as anxiety disorder (panic disorder), is granted. ____________________________________________ PAUL SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs