Citation Nr: 1721744 Decision Date: 06/14/17 Archive Date: 06/23/17 DOCKET NO. 15-00 284A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Veteran represented by: Wounded Warrior Project WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from December 1997 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for PTSD, GAD and MDD. The Veteran timely appealed that decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in September 2015; a transcript of that hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The evidence of record demonstrates that the Veteran's PTSD and GAD were incurred in or otherwise the result of military service. CONCLUSION OF LAW The criteria for establishing service connection for PTSD and GAD have been met. 38 U.S.C.A. §§ 1110, 1111, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires competent 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, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V)]; a link, established by medical evidence, between the veteran's current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). In this case, the Veteran avers that service connection is warranted for her psychiatric disorders as they began during or are otherwise related to military service. Specifically, the Veteran points to her treatment during service for psychiatric symptoms, particularly anxiety. Moreover, the Veteran testified during her hearing and in a September 2013 statement that she was told to report to the Pentagon on September 12, 2001, the date following the attack on that facility; she further testified that she continues to have psychiatric symptoms whenever she drives by that facility, due to memories of smells of burning flesh and jet fuel. The Veteran further indicated that, while she did not have direct physical combat, in her role as an intelligence analyst following the attack on September 11, 2001, she participated in several intelligence operations. Additionally, she stated that due to concerns regarding revocation of her clearance and loss of her job, she sought psychiatric treatment during service although she specifically did not mention any job-related stress in those treatment records, instead indicating psychiatric symptoms solely due to her marital problems and concern over a kidney donation she was giving to her brother. In the Veteran's service records, it is noted that on September 4, 2001, the Veteran's duty station was transferred from Langley Air Force Base to Fort Belvoir Joint Forces Command; in her separation documents, it noted that the Veteran's last duty assignment was at Fort Belvoir Joint Forces Command, located in the Pentagon. Other personnel records, including a performance report from 2002, the Veteran's duties were shown to include participation in intelligence operations for personnel recovery. In April 1998, the Veteran is shown to have sought mental health treatment for bereavement following the death of her grandmother. In June 1999, the Veteran also sought treatment due to workplace stress, although no diagnosis was made at that time. The Veteran sought treatment for anxiety in November 2002; at that time, the Veteran indicated that she was anxious regarding upcoming kidney surgery where she was going to be donating a kidney to her 14-year old brother. In another November 2002 treatment record, the Veteran was treated for anxiety pertaining to the upcoming kidney surgery as well as her husband leaving for Russia at that time; she was prescribed Xanax for her anxiety symptoms at that time. In July 2003, the Veteran indicated a history of psychiatric treatment in service for bereavement in 1998, for stress and illness of her brother in 1999, and for anxiety due to being a transplant donor in 2002. Finally, in October 2003, the Veteran sought treatment for depression secondary to marital issues and estrangement of her husband during her pregnancy; she was diagnosed with adjustment disorder at that time. Following separation from service, the first notation of any psychiatric treatment was in December 2012. At that time, the Veteran was noted as presenting at the emergency room with an anxiety attack; she was given Xanax. She reported that she had depressed mood, diminished interest or pleasure in usual activities, insomnia or hypersomnia, fatigue or loss of energy, feelings of worthlessness or guilt, impaired concentration, tingling and panic attacks which she had for many years. She was noted to have a history of generalized anxiety disorder (GAD). She was diagnosed with major depressive disorder (MDD) and GAD at that time and was prescribed Lexapro at that time. Private treatment records in 2013 further demonstrate diagnoses of GAD, a panic disorder and PTSD by history; the Veteran indicated similar stressors regarding her time at the Pentagon following the September 11, 2001 attack in those records. The Veteran underwent a VA psychiatric examination in July 2014. The Veteran was diagnosed with GAD and a panic disorder with agoraphobia at that time. During the examination, the Veteran reported being involved in combat activity during her service. After review of the claims file and examination, the examiner opined that the Veteran's psychiatric disorder was less likely as not related to service in a September 2014 addendum opinion; the rationale for that opinion was that the sources of anxiety reported from 2002-2004 were situational and have since resolved. The examiner found that there was no evidence in the record to suggest chronicity of anxiety problems following discharge in 2004 as there is not consistent treatment for anxiety problems beyond a few visits to the emergency room for panic attacks, until 2013. Her reports of the source of her anxiety were personal and situational and have resolved. Therefore, the reviewer concluded that her current reported difficulty with anxiety was not related to her treatment for anxiety while in the service. The Veteran provided a March 2015 opinion from her private physician, Dr. D.A., in which she stated that she had treated the Veteran since December 2006 and had begun treating the Veteran for GAD and MDD in December 2012. She further stated that she reviewed the pertinent service medical records and concluded that it is as likely as not that the GAD and MDD are a result of unresolved issues from military service. She added that it is as likely as not that the MDD is a result of the Veteran's service-connected chronic pelvic pain. The AOJ obtained a May 2015 addendum opinion regarding Dr. D.A.'s opinion. After noting the September 2014 VA examiner's opinion, the May 2015 examiner opined again that the Veteran's anxiety and depression in service were not related to her current conditions, noting again that the conditions in service were related to situational stresses - donating a kidney to her ill brother and marital estrangement - that have since resolved or passed. The examiner also noted that the Veteran did not mention serving at the Pentagon after the September 11, 2001 attacks as a source of anxiety or depression when she sought treatment for these conditions in service in 2002 and 2003. In June 2015, the Veteran was examined by her VA treating psychologist, Dr. B.K., who diagnosed the Veteran with PTSD and GAD; Dr. B.K. referenced the November 2014, and January, May and June 2015 VA treatment records noted above. In a July 2015 addendum opinion, Dr. B.K. opined that the Veteran has been experiencing moral injuries and an intense feeling of guilt for indirectly inflicting collateral damage while on active duty performing intelligence operations and that her current diagnosis of PTSD is as likely as not related to traumatic events that occurred during service. Based on the foregoing evidence, by resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for PTSD and GAD is warranted. The Veteran is shown to have been treated for anxiety during military service and since military service, and with respect to the opinions regarding the etiology of this condition, the Board finds the evidence is at least in a state of equipoise. Moreover, the Veteran's VA treating psychologist, Dr. B.K., diagnosed the Veteran with PTSD and related this condition to stressors in service, particularly guilt over her role in intelligence operations that resulted in collateral damage. Although there are negative VA opinions regarding whether the Veteran has PTSD related to her military service, the Board finds these opinions are not as probative as the opinion from Dr. B.K. because they fail to consider whether participation in intelligence operations in theaters of war which would lead to collateral damage was potentially distressing in nature and was the source of her psychiatric symptomatology and instead focused solely on the Veteran's lack of participation in combat. Accordingly, by resolving all reasonable doubt in her favor, the Board finds that service connection for the Veteran's PTSD and GAD is warranted. See 38 C.F.R. §§ 3.102, 3.303, 3.304. In reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for PTSD and GAD is granted. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs