Citation Nr: 1754350 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 08-19 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD) with panic disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Barrett, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1999 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction of this matter has since been transferred to the RO in Boston, Massachusetts. This matter was previously remanded by the Board for further development. FINDINGS OF FACT 1. The Veteran is service-connected for PTSD with panic disorder. 2. The persuasive and competent evidence establishes that the Veteran's major depression/depressive disorder is secondary to service-connected PTSD with panic disorder. CONCLUSION OF LAW The criteria for service connection for major depression/depressive disorder, NOS are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability either (a) was caused by or (b) is aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (a) (2015); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran was underwent a VA general examination in September 2004. The examiner, a physician, reviewed the Veteran's file and diagnosed the Veteran with depression and anxiety. It is unclear as to whether this VA examiner was a psychiatrist or psychologist- as opposed to a merely general practitioner. In September 2004, the Veteran underwent a VA psychiatric examination. Following a review of the Veteran's records and clinical evaluation, an AXIS I diagnosis of PTSD with panic disorder was provided. In February 2007 the Veteran underwent another VA psychiatric examination. The examiner, a psychologist, diagnosed the Veteran with four AXIS I conditions: (1) PTSD, chronic and severe; (2) panic disorder with mild agoraphobia, secondary to PTSD; (3) depressive disorder, NOS, moderate, secondary to PTSD; and (4) alcohol abuse, in early remission, secondary to PTSD. In April 2010 the Veteran underwent another VA psychiatric examination. The examiner provided an AXIS I diagnosis of PTSD, chronic and severe. An AXIS II diagnosis was deferred. In May 2017, the VA psychologist who examined the Veteran in 2007 provided another opinion. He noted that he had been asked to assess whether the Veteran had another mental conditions secondary to PTSD. He was further asked to determine whether any such disability involved any symptoms separate and apart from those already contemplated by the service-connected PTSD. The examiner opined that the Veteran had four AXIS I mental disorder diagnoses: (1) PTSD, chronic and currently severe; (2) Major depression, recurrent without psychotic features, comorbid with and secondary to PTSD; (3) Panic disorder with agoraphobia, comorbid with and secondary to PTSD; and (4) Alcohol use disorder, currently episodic in the form of binge drinking, comorbid with and secondary to PTSD. The examiner opined that it is possible to differentiate what symptoms are attributable to each diagnosis. Specifically, he indicated that the Veteran's PTSD was characterized by a full syndrome of symptoms consistent with DSM-V criteria. These included hyperarousal episodes, avoidance symptoms, re-experiencing symptoms, and negative cognitions. The Veteran's comorbid/secondary panic disorder with agoraphobia was characterized by panic attacks that occurred essentially on a daily basis with marked agoraphobic avoidance noted. The Veteran's comorbid/secondary major depression was characterized by a persistent and moderate to severe low mood, decreased self-esteem, guilt feelings, decreased energy and motivation, persistent negative and pessimistic thought patterns, severe anhedonia, emotional constriction, recurring suicidal ideation, feelings of helplessness and despair, and general distress and anxiety. The Veteran's comorbid/secondary alcohol abuse was characterized by binge drinking. The examiner concluded that from both a functional and clinical standpoint the Veteran's principal diagnosis of PTSD and his comorbid/secondary conditions of panic disorder with agoraphobia, major depression, and alcohol abuse were best seen as a single clinical entity. The secondary/comorbid conditions, as he noted, stemmed from and were derived from the Veteran's PTSD. Taken together these conditions resulted in persistent and markedly severe functional impairment for this Veteran. The Board finds the February 2007 and May 2017 VA medical opinions to be highly probative. The examiner, a psychologist, reviewed the evidence of record and conducted a clinical evaluation. The examiner provided a cogent rationale explaining his findings. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for major depression as secondary to service-connected PTSD with panic disorder have been met. 38 C.F.R. § 3.310. Service treatment records are negative for complaints or treatment of an anxiety disorder during military service. It is also important to note that the May 2017 examiner identified anxiety as a symptom of the Veteran's major depression- not as a separate clinical diagnosis. Symptoms of anxiety were not noted in the April 2010 VA examination. While anxiety appears to have diagnosed as a separate clinical diagnosis at the 2004 VA general examination, the Board reiterates that the record is unclear as to whether that examiner had any expertise in the field of psychiatry or psychology- as opposed to internal medicine. Therefore, the opinions provided in February 2007 and May 2017 by the licensed psychologist are considered to be more probative. In addition, the VA treatment records largely reflect anxiety was viewed as a symptom of the PTSD and/or depression. This fact, coupled with the highly persuasive May 2017 VA opinion, supports the Board's finding that service connection is not warranted for a separate anxiety disorder. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Finally, the Board notes that the Veteran is already service-connected for PTSD (another acquired psychiatric disability). When implementing this Board decision to grant service connection for depressive disorder/major depression, the RO will rate the depression together with the service-connected PTSD to provide one rating based on all the Veteran's psychiatric impairments. The General Formula for Rating Mental Disorders at 38 C.F.R. § 4.130 provides that all service-connected psychiatric disorders and symptoms, including PTSD and depression symptoms, are to be rated together. Thus, the Veteran would not be entitled to separate ratings for symptoms or impairment of depression and PTSD, or any other psychiatric symptoms as 38 C.F.R. § 4.14 (2016) provides that rating such manifestations of a disability under multiple diagnoses (i.e., pyramiding) is to be avoided. See VAOGCPREC 23-97; see also Esteban v. Brown, 6 Vet. App. 259(1994) (holding that a separate rating may be granted for a "distinct and separate" disability that is, "when none of the symptomatology . . . is duplicative . . . or overlapping."). That is, a claimant may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). ORDER Service connection for depressive disorder/major depression, recurrent is granted. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs