Citation Nr: 1746984	
Decision Date: 10/20/17    Archive Date: 10/31/17

DOCKET NO.  13-30 149	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), generalized anxiety disorder, panic attacks, and agoraphobia.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Getz, Associate Counsel






INTRODUCTION

The Veteran served on active duty from April 1973 to October 1975. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which denied service connection for an acquired psychiatric disorder and post-traumatic stress disorder (PTSD).  Although the Veteran did not appeal the denial of his PTSD claim, he filed a claim to reopen his claim for an acquired psychiatric disorder in April 2012. 

In a June 2015 decision, the Board determined that the Veteran had submitted new and material evidence and ordered his claim reopened.  After further development and issuance of a supplemental statement of the case in August 2015, the Veteran's claim is now ready for adjudication.


FINDINGS OF FACT

1.  PTSD is not clinically shown.

2.  The Veteran's acquired psychiatric disorder, to include generalized anxiety disorder, panic attacks, and agoraphobia, is not related to active service.  


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder, to include PTSD, generalized anxiety disorder, panic attacks, and agoraphobia, have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309 (2016).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service Connection

The Veteran is claiming entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety disorder, panic attacks, and agoraphobia, which he asserts is related to his active duty service.  Specifically, the Veteran attributes his acquired psychiatric disorder to two stressors that he claims occurred on active duty in the Air Force while serving as a crew chief on a C-141 aircraft at McGuire Air Force Base in New Jersey in 1974.  In the first incident, his arm became entrapped in the internal wiring of the nose of a C-141 aircraft while conducting late night repairs, resulting in him being stranded for hours in the dark with his arm trapped inside the nose of the plane until freed by other service members.  In the second incident, he was accidently stranded on tail of an aircraft suspended approximately 40 feet in the air. 

PTSD

As an initial matter, while the Veteran has not specifically claimed that he experiences PTSD, the Board notes that a number of treatment records record this as a potential diagnosis.  Therefore, it is appropriate to evaluate this as part of the decision on appeal.  Clemons v. Shinseki, 23 Vet. App. 1 (2009);

In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), 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.  38 C.F.R. § 3.304(f) (2016).  A diagnosis of a mental disorder must conform to the American Psychiatric Association, Diagnostic and Statistical Manual, Fourth Edition (DSM-IV) (1994).  38 C.F.R. § 4.125(a) (2016).
As set forth in the DSM-IV, a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror.

After a review of the record, although the Veteran has been diagnosed provisionally with PTSD on some occasions, the Board concludes that he does not have a valid diagnosis of PTSD for service connection purposes.   Specifically, at a VA examination in July 2013, the VA examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD, despite the Veteran's characterization of his in-service incidents as "stressors."  

Although the evidence does include diagnoses of PTSD, the Board places greater weight in the determination that this diagnosis is incorrect.  In doing so, the Board notes that opinion provided by VA psychiatric examiner is of high probative value because of the access to the Veteran's treatment records and history, the higher credentials and level of training of the examiner, and the thorough explanation in the examination report following examination of the Veteran. In contrast, the doctors who diagnosed the Veteran with PTSD do not indicate the basis for their diagnosis.  Indeed, it is unclear whether the Veteran ever explained his stressor events to them in any detail.

Simply stated, the best evidence in this case, though by no means all the evidence in this case, clearly reveals that the Veteran does not have PTSD at this time.

In determining that the Veteran does not have a current diagnosis of PTSD, the Board recognizes that a disorder need only be manifest at some point during the pendency of that claim, even if no disability is present at the time of the claim adjudication.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  However, this is not a situation where the Veteran had a legitimate prior diagnosis that has since resolved.  Rather, the Board has determined that the weight of the clinical evidence is against the conclusion that a diagnosis of PTSD has been appropriate during the pendency of the appeal.  The Board finds that the preponderance of the evidence shows that different psychiatric diagnoses are appropriate.

As such, the Board finds that service connection for PTSD is not warranted, since the evidence indicates that this does not exist.  38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992).

Other Psychiatric Disorders

As for the Veteran's other diagnosed psychiatric disorders, the Board determines that service connection is also not warranted.  Specifically, under the relevant laws and regulations, service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016).  Generally, the evidence must show:  (1) the existence of a present disability; (2) an 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.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).  

Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1112, 1113 (2014); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2016). 

Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a); See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014).  In this case, the Veteran has not been diagnosed with one of the enumerated disorders listed under 38 C.F.R. § 3.309 (a) (22016); hence, the application of 38 C.F.R. § 3.303 (b) is not warranted.  Nevertheless, evidence of continuous symptoms since active duty is still a factor in determining whether a causal relationship exists between his claimed in-service stressors and his current disability as is contemplated under 38 C.F.R. § 3.303(a) (2016).

In considering a claim for service connection, VA must give due consideration to all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (2016).  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 veteran.  38 U.S.C.A. § 5107(b) (2016). 

After a review of the competent and credible evidence of record, the Board determines that service connection for an acquired psychiatric disorder, to include generalized anxiety disorder, panic attacks, and agoraphobia, is not warranted.  

As an initial matter, the Board acknowledges the Veteran has a current disability.  Medical evidence shows that he was diagnosed with a psychiatric disorder manifested by general anxiety, panic attacks and agoraphobia in a VA examination in September 2003.  Consequently, the Board finds the first element in the service connection analysis has been met.  

With regard to the second element, a preponderance of evidence does not support the finding that the Veteran incurred a psychiatric disorder in service.  First, the Veteran's service treatment records do not reflect complaints of, treatment for, or a diagnosis related to any type of psychiatric disorder manifested by anxiety, panic attacks, or agoraphobia while in service whatsoever.  Significantly, the Veteran's separation physical examination conducted in September 1975 reflects no report or observation of any psychiatric distress or disorder.  Although the Veteran's representative has cited a service treatment note showing that the Veteran suffered a broken arm in service as evidence tending to show the Veteran broke his arm as the result of being trapped in the nose of a plane at McGuire Air Force Base in New Jersey in 1974, the Board notes that the Veteran specifically stated in his separation physical that he incurred this injury at Bridgeport, Connecticut, not at McGuire Air Force Base.  Civilian medical treatment notes confirm this fact.  

Secondly, post-service medical evidence does not reflect symptoms related to a psychiatric disorder until October 1999, over 20 years after the Veteran left active service.  The first indication of any psychiatric diagnosis of any kind is contained in a private treatment record dated October 1999 at which time the examiner observed that the Veteran complained of anxiety with panic attacks.  While service connection for a psychiatric disorder may not be shown based solely on continuity of symptomology, see Walker, 708 F.3d at 1331, such a large gap in time between the first reports of psychiatric symptoms and treatment for an underlying psychiatric condition weighs against the Veteran's claim that his current psychiatric disorder is causally related to his claimed in-service stressors.  

As part of this claim, the Board recognizes the Veteran's statements regarding his history of psychiatric symptoms since leaving active service.  In this regard, while the Veteran is not competent to diagnose a psychiatric disorder such as generalized anxiety disorder, panic attacks, or agoraphobia, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence.  Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007).  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

Here, however, the Board determines that the Veteran's statements, while competent, are nonetheless not credible.  In reaching this conclusion, the Board notes that such factors as facial plausibility, bias, self-interest, and consistency with other evidence, including the Veteran's own statements, may all be weighed in determining credibility.  Caluza v. Brown, 7 Vet. App. At 511; see also Jandreau v. Nicholson, 492 F. 3rd 1372, 1376 (Fed. Cir. 2007).  In this case, the Veteran was treated on numerous occasions for a variety of reasons in service, but never reported any psychiatric symptoms, to include anxiety, panic, fear, or agoraphobia.  See AZ v. Shinseki, 731 F.3d 1303 (2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present).  In addition, the Veteran's physical examination at separation was silent for any complaints of, treatment for, or a diagnosis related to, any type of psychiatric disorder manifested by anxiety, panic attacks, or agoraphobia.  

As noted above, the first diagnosis for a psychiatric disorder occurred over 20 years after the Veteran left active service.  Significantly, the Board notes that the Veteran submitted a claim for educational benefits to the VA in October 1976, only one year after leaving active service, but waited 25 years to report his psychiatric condition to the VA, and over 30 years to file a claim for this disability.  Thus, the Board can infer that the Veteran had knowledge of VA benefits system at that time and had the opportunity to file a claim for his psychiatric disability.  See generally, Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011)(Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference).  In light of these facts, continuity of symptomology since service has not been shown based upon the evidence of record or the Veteran's statements. 

Next, with regard to the element of causation, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  Here, the Board finds that the weight of the competent and credible evidence does not attribute the Veteran's psychiatric disorder to his active duty service, despite his contentions to the contrary.  

In reaching this conclusion, the Board has carefully considered the favorable medical nexus opinions in the Veteran's file.  Specifically, a VA provider in March 2009 stated that "[the] patient stated to me that he was left stranded high above the ground on the wing of an Air Force plane . . . .and left confined in the wheel well of a C-141 where he had his arm/shoulder caught for hours . . . .[t]hese events from the time of his military service seem to have had a continuous impact on him, and they have exacerbated his anxiety and panic symptoms that are very debilitating today."  And a VA provider in May 2010 stated that "it is more likely than not that [the Veteran's] panic disorder and anxiety are directly related to incidents (trapped in plane, etc.) that occurred while he was active duty in the Air Force."  Lastly, a VA provider in January 2013 stated "it is likely that [the Veteran's] panic disorder and anxiety are in part related to incidents (trapped in plane, etc.) that occurred while he was active duty in the USAF."  

The Board finds these opinions competent, but not persuasive, and thus, of little probative value.  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, see Sklar v. Brown, 5 Vet. App. 140 (1993), and the weight of an opinion may be reduced if the examiner fails to explain the basis for an opinion.  Id.  A medical opinion is no better than the facts alleged by a veteran, and an opinion based on an inaccurate factual premise has no probative value.  See, e.g., Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993).  

In this case, all three medical opinions are inconsistent with the Veteran's account of the onset and history of his psychiatric disability.  More importantly, their failure to discuss other possible causes of the Veteran's current disability, in light of the other evidence of record, demonstrate that they did not have access to other relevant medical records provided by the Social Security Administration (SSA) at the time they rendered their opinions.  Specifically, the Veteran underwent multiple medical examinations for the SSA in support of his SS disability claim prior to and during the same time he pursed his service-connection claim.  These records clearly indicate that the Veteran specifically attributed the cause of his psychiatric disorder to the loss of his job in 2000, and that the onset of his disability began around that same time.  For example, in response to an SSA disability questionnaire asking "When did your illness, injuries or conditions first bother you (bold in original) dated September 2003, the Veteran replied "Nov [ember] 2000."  And in a psychiatric evaluation conducted through the Connecticut Health System (CHS) in August 2005, the examiner noted the Veteran reported "first [becoming] anxious 4 years ago, after losing his job as a jet engineer."  Moreover, in a CHS medical note dated December 2001, the examiner noted the "Veteran . . . .reported [a] history of panic attacks dating back approximately 1-1/2 years ago when . . ."  he was informed by his employer that the plant where he was employed would be closed . . ."  Finally, in a CHS medical note dated June 2008, the clinical psychologist noted "54 yo dwm w/ hx of anxiety disorder/panic attacks dating back to losing his job 8 years ago."  Treatment notes from both SSA medical records (October 2004 treatment note) and VA medical records (January 2008) clearly document the fact that the Veteran's anxiety and panic attack first presented in 2001 when he first sought treatment for his condition after losing his job in 2000.  

In addition to being inconsistent with the other medical evidence of record, the Board finds these providers did not support their opinions with a sufficient discussion of the clinical data and provide their underlying rationales for their opinions.  See Bloom v. West, 12 Vet. App. 185, 187 (1999).  Furthermore, the Board finds the March 2009 examiner's opinion in which he states that the Veteran's experiences in service "seem to have had" a continuous impact on him, amounts to mere speculation.  In the Board's view, the wording of this statement is tantamount to the use of such term[s] as "could," ... "may" or "possibly." See Bloom v. West, 12 Vet. App. 185, 187 (1999).  In light of these facts, the Board finds that all 3 medical statements are of little probative value on the issue of whether a medical nexus exists between the Veteran's described in service stressors and his current psychiatric disability.  

The Board has also considered the Veteran's statements, as well as his fellow service member which have been submitted in support his claim that his current psychiatric disability was caused by the stressor events that he experienced while working around aircraft at McGuire Air Force Base in New Jersey in 1974.  With regard to such evidence, the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).

In this case, the Board acknowledges that the Veteran is competent to testify about the psychiatric symptoms he experienced in service, and his symptoms experienced after, despite his status as a lay person.  See Buchanan v. Nicholson, 451 F. 3rd 1331 (Fed. Cir. 2006).  However, the Veteran is not competent to provide testimony regarding the etiology of his psychiatric disorder.  See Jandreau, 492 F.3d at 1377, n.4.  Because acquired psychiatric disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make.  Id.  Therefore, the Board finds that the Veteran's statements regarding the etiology of his psychiatric disability lack competency.  

The Board does not dispute the Veteran's accounts of stressor he experienced in service while working around aircraft at McGuire Air Force Base in New Jersey in 1974.  However, while the Board concedes these events occurred, it finds there is insufficient medical evidence to support the conclusion that these events caused his current psychiatric disability.  

In sum, based on the totality of evidence in the record, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder, to include generalized anxiety disorder, panic attacks, and agoraphobia, and there is no doubt to be otherwise resolved.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Therefore, the claim for service connection must be denied.   

VA Duty to Notify and Assist

The Board has given due consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence, necessary to substantiate claims for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016).  The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims.  38 U.S.C.A. §§ 5103, 5103A (West 2014).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2016); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, VA provided the Veteran notice letters informing him of both his and VA's obligations.  

With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination."  38 U.S.C.A. § 5103A(c)(2) (West 2014).  All records pertaining to the conditions at issue are presumptively relevant.  See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).  In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information.  Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)).  In addition, the duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  

In this case, the Board finds that all necessary assistance has been provided to the Veteran and no further notice or assistance is required to fulfill VA's duty to assist in the development of his claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA has obtained all necessary VA treatment records and provided the Veteran with the opportunity to provide all private treatment records.  Moreover, VA has also provided the Veteran with an adequate physical examination.  


ORDER

Service connection for an acquired psychiatric disorder, to include PTSD, generalized anxiety disorder, panic attacks, and agoraphobia, is denied.  




____________________________________________
B.T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs