Citation Nr: 1751787 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 07-20 639A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder (other than posttraumatic stress disorder (PTSD) with major depressive disorder and alcohol dependence in remission), to include anxiety disorder and panic disorder, and to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from July 1974 to August 1977, for which he received the National Defense Service Medal and the National Meritorious Unit Commendation. The Veteran also served on active duty in the U.S. Navy from July 1981 to December 1987, for which he received decorations including the Sea Service Deployment Ribbon and the First Good Conduct Award. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). All records in the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed and considered, to include the transcript of the December 2008 Board hearing presided over by the undersigned Veterans Law Judge. The Board acknowledges the Veteran's representative's argument that service connection for major depressive disorder should be separately service-connected. See May 2016 Informal Hearing Presentation. However, the appeal for entitlement to service connection for depression has been resolved. See January 2016 rating decision (granting service connection for PTSD with major depressive disorder and alcohol dependence in remission and assigning an initial 30 percent evaluation prior September 10, 2013, and a 100 percent evaluation from September 10, 2013). In November 2010, July 2013, June 2016, and May 2017, the Board remanded the case for further development. The case is again before the Board for further appellate proceedings. FINDINGS OF FACT The Veteran does not currently have an acquired psychiatric disorder other than his already service-connected PTSD with major depressive disorder and alcohol dependence in remission, and he has not had such a separately diagnosed disorder during the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for a diagnosed psychiatric disorder (other than his already service-connected PTSD with major depressive disorder and alcohol dependence in remission) have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Compliance with Prior Remand In March 2017, the Board remanded the case and directed the AOJ to obtain an addendum medical opinion to determine the nature and etiology of anxiety disorder, and the AOJ did so in June 2017. The examiner provided the requested information. The claim was then readjudicated in a September 2017 supplemental statement of the case. For these reasons, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection A Veteran is entitled to VA disability compensation for service connection if the facts establish that a disability resulted from disease or injury incurred in the line of duty or for aggravation of a preexisting disease or injury in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The Veteran contends that he has an acquired psychiatric disorder (other than his service-connected PTSD with major depressive disorder and alcohol dependence in remission) that is related to service or secondary to a service-connected disability. The Veteran originally claimed entitlement to service connection for anxiety, and the medical evidence shows diagnoses of panic disorder and anxiety disorder during the appeal period. The Veteran has been separately granted service connection for PTSD with major depressive disorder and alcohol dependence in remission, and a matter regarding this disability is not on appeal. The Board notes that service connection for PTSD with major depressive disorder and alcohol dependence in remission was granted and assigned a disability rating as effective for the entire period on appeal. The Board acknowledges that the evidence during the appeal period, such as the May 2005 and November 2005 VA examinations, shows that the Veteran was diagnosed separately with anxiety disorder prior to his diagnosis of PTSD. The Board also acknowledges that during the appeal period, specifically in a January 2011 VA mental health evaluation, the Veteran was diagnosed with panic disorder as separate from his PTSD diagnosis. However, the preponderance of the evidence is against finding that the Veteran has had a separately diagnosable disability of anxiety disorder or panic disorder that is independent from the Veteran's PTSD. Here, the June 2017 VA medical opinion regarding the nature of the Veteran's psychiatric disorders, and specifically as to the nature of any present anxiety disorder or panic disorder, has high probative value, as the provider provided clinical rationale and covered all bases, reviewed the claims file, and has the requisite expertise to render an opinion as to whether any assessment of anxiety disorder or panic disorder may be a separately diagnosable psychiatric disability from PTSD. Regarding anxiety disorder, the highly probative June 2017 VA medical opinion states that the May 2005 VA examination that yielded a diagnosis of Anxiety Disorder NOS did so because the Veteran's symptoms did not meet DSM-IV-TR diagnostic criteria for PTSD at the time of the Veteran's examination. The June 2017 VA examiner stated that the diagnosis in May 2005 might have been PTSD "but for" the absence of "response involving intense fear, helplessness or horror," required for a diagnosis of PTSD. The June 2017 VA examiner explained that the May 2005 VA examiner therefore assigned the "default" diagnosis for sub-clinical PTSD of Anxiety Disorder NOS. The June 2017 VA examiner then stated that the Anxiety Disorder NOS diagnosis rendered then therefore must be seen as comparable to and addressing the majority of symptoms that have been subsequently classified as PTSD and in relation to the same claimed stressors for this Veteran. The examiner stated, "In other words, his current SC PTSD condition includes and subsumes the symptoms that were addressed as Anxiety Disorder NOS in the May 17, 2005 examination." Based on this June 2017 VA medical opinion, the Veteran's anxiety disorder symptoms were subsumed by the later diagnosed disorder of PTSD, for which service-connection has already been granted and of which symptoms have already been evaluated for the entire period on appeal. Given this June 2017 VA medical opinion, the Veteran does not have a diagnosis of anxiety disorder that is separate from his already service-connected PTSD. Regarding panic disorder, the January 2011 VA provider rendered a separate diagnosis of panic disorder and also rendered separate diagnoses for PTSD with related phobic avoidance, major depression, and alcohol dependence in remission. Again, the Veteran is service-connected for PTSD with major depressive disorder and alcohol dependence in remission. There is no medical evidence of record, and specifically in the January 2011 VA mental health evaluation, that shows any clinical rationale as to why panic disorder may be medically considered a separately diagnosed disorder from PTSD, especially given that the January 2011 diagnoses were rendered based on similar sets of symptoms, as described by the June 2017 VA examiner, discussed below. Therefore, this separate diagnosis of panic disorder has little probative value. The June 2017 VA examiner reviewed the January 2011 VA Mental Health Assessment conducted by a VA psychiatrist for treatment purposes. The June 2017 VA examiner stated that this assessment yielded diagnoses for: PTSD-military and childhood; Major Depression without psychotic features-chronic and severe; Panic disorder-currently mild; Phobic avoidance -primarily related to PTSD; and Alcohol dependence in remission since June 2010. The June 2017 VA examiner noted that the Panic Disorder symptoms addressed in the January 2011 VA report are the same ones that are listed in the same report among symptoms for the PTSD diagnosis, including having physical reactions such as heart pounding, trouble breathing, sweating, when something reminded the Veteran of a stressful experience from the past. The June 2017 VA examiner opined that the assignment for an independent diagnosis of Panic Disorder was made in error in the January 2011 VA opinion. The June 2017 VA examiner explained that the "panic disorder" symptoms are accounted for by and within the PTSD diagnosis. She also stated that per DSM-IV-TR, the panic attacks are better accounted for by PTSD, and that there is no evidence at that time to show persistent concern about having additional attacks; worrying about the implications of the intact or its consequences; and/or a significant change in behavior related to the attacks. The June 2017 VA examiner also noted that the DSM 5 revision of psychiatric nomenclature published May, 2013, clarifies that "panic attacks" are NOT an independent psychiatric condition, but rather, occur in the context of other conditions. She stated that "Panic attack" is not a mental disorder and cannot be coded. Panic attacks can occur in (as feature of) any mental disorder, for example "PTSD, with panic attacks." For these reasons, the June 2017 VA examiner stated that the separate diagnosis of panic disorder is not warranted. Further, the June 2017 VA medical opinion that the Veteran's "panic disorder" is not a separate disorder but is rather a part of the Veteran's diagnosis of PTSD, is supported by the November 2016 VA medical opinion, which opined that the January 2011 VA diagnosis of panic disorder is duplicative of the PTSD diagnosis rendered in January 2011, and that the PTSD diagnosis subsumes the symptoms that constituted the June 2011 assessment of panic disorder. The highly probative June 2017 VA medical opinion which states that panic disorder is not a separately diagnosable disorder in this case outweighs the assessment of panic disorder as separate from PTSD. On review, and in light of the June 2017 VA medical opinion, the preponderance of the competent and probative evidence is against a finding that anxiety disorder independent from PTSD or panic disorder independent from PTSD existed at the time the claim was filed or at any time during the pendency of the claim on appeal. Thus, the claimed present disability of an acquired psychiatric disorder (other than his already service-connected PTSD with major depressive disorder and alcohol dependence in remission), including anxiety disorder and panic disorder, is not shown, and service connection for the same is not warranted. 38 C.F.R. § 3.303; McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Again, the Board notes that the Veteran's service-connected PTSD with major depressive disorder and alcohol dependence in remission, and symptoms thereof, has been granted service connection and evaluated as effective during the entire period on appeal. ORDER Entitlement to service connection for an acquired psychiatric disorder (other than PTSD with major depressive disorder and alcohol dependence in remission) is denied. ______________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs