Citation Nr: 1800906 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 13-00 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), generalized anxiety disorder (GAD), cognitive disorder, and panic disorder. REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his mother ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1988 to August 1991, to include service in Saudi Arabia during the Persian Gulf War. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). A Travel Board hearing was held in March 2015 before the undersigned Veterans Law Judge (VLJ), sitting in Winston-Salem, North Carolina. A copy of the transcript of that hearing is of record. The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issues of entitlement to service connection for PTSD and entitlement to service connection for an acquired psychiatric disorder other than PTSD were previously separately addressed by the RO. The finding in Clemons, however, allows the Board to recharacterize the psychiatric claims on appeal to more broadly reflect the benefit sought based on the testimony and evidence before the undersigned. In June 2015, the Board remanded the claim for additional evidentiary development. The case has now been returned to the Board for further appellate consideration. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Legacy Content Manager paperless claims file associated with the Veteran's claim. FINDING OF FACT The Veteran as likely as not has panic disorder without agoraphobia that is attributable to his active military service. CONCLUSION OF LAW The Veteran's panic disorder without agoraphobia was incurred during active military service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). Given the Board's favorable resolution of the only claim on appeal, the Board finds that all necessary actions to fairly adjudicate this claim have been accomplished. Service Connection - In General Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). The chronicity provisions are applicable where evidence, regardless of its date, show that a veteran had a chronic condition, as defined in 38 C.F.R. § 3.309(a) (2017), in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2017). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2017). The United States Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a) (2012); 38 C.F.R. § 3.303(a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Background Much of the following background evidence was reported in the Board's June 2015 remand decision. It is repeated here for clarity. VA records show that the Veteran's military occupational specialty was in chemical operations. In a VA FORM 21-0781 dated in 2011 and in his 2015 testimony, he avers that he was confined to his bed for a one week period during service due to physical and mental exhaustion. (The Board's review of his service treatment records (STRs) does not corroborate this assertion.) He reports incidences of almost being blown up by a land mine as he was about to place his gear on an explosive device. Before he could call out, it exploded, injuring others. He currently dreamed of being in a war zone that he was unable to leave. During his military service, he fought in combat and was exposed to many exploding bombs. (Hrg. tr. at pgs. 8-9.) In this case, it is noted that the Veteran has not been diagnosed as having PTSD by VA personnel. However, a private examiner noted PTSD in 2010. Moreover, over the years, the Veteran has been diagnosed with GAD on numerous occasions (as early as upon private report in 2002 and in VA records thereafter) and to include panic disorder with "some symptoms of PTSD" in 2008, and a cognitive disorder in 2010. When examined by VA in December 2010, the examiner noted that the Veteran said that he was first found to have anxiety attacks when he was 23 years old. He took anti-anxiety medications, but had subsequent periods of deep depression, to include after a motor vehicle accident in 2010. As to his time in service, the Veteran said that he was not used to military culture which included keeping things cleaned and detailed, and he found such inservice inspections "extremely stressful." It was noted that he had combat experience. The examiner further noted that he did not identify any specific traumatic stressors (pre-military, during service, or post-military). She diagnosed anxiety disorder and specifically noted that the criteria for PTSD were not met. She opined that the Veteran's anxiety disorder was not linked to any claimed stressor during service because the Veteran did not provide information about any specified stressors during the evaluation. In additional VA examination in June 2012, the examiner noted that he could not ascertain an accurate diagnosis because of symptom exaggeration. At the 2015 hearing, the Veteran testified that his current symptoms included anxiety, anger, night sweats, dryness in the throat, and avoidance of others. He felt that the 2010 examination was inadequate in that the examiner never asked him about his inservice stressors. He said that she mostly asked about his childhood, but not that much about his military service. The Veteran's mother testified that the Veteran acted differently after he came home from service. Specifically, he did not like to be around others and exhibited angry behavior, often arguing with others. She felt like his symptoms had increased. At the hearing, the Veteran and his attorney expressed their opinion that the 2010 examination was inadequate in that the examiner did not ask the Veteran about his military stressors so he didn't provide them. In June 2015, the claim was remanded for outstanding treatment records and for an additional VA mental health examination to be conducted. Upon evaluation, the examiner was to determine whether it was at least as likely as not (i.e., whether there was at least a 50 percent probability) that the Veteran had PTSD or any other acquired psychiatric disorder, to include GAD, a cognitive disorder, or panic disorder, which was related to his active military service, including as a result of reported stressors such as fear of hostile military or terrorist activity in the Persian Gulf War. The requested VA examination was conducted in June 2016. The final diagnosis was panic disorder without agoraphobia. The examiner specifically noted that the Veteran's symptoms did not meet the diagnostic criteria for a diagnosis of PTSD. She further indicated that the Veteran reported stressors to include driving over a land mine in a vehicle while in Saudi Arabia. Moreover, it was noted that this stressor was related to his fear of hostile or military terrorist activity. She opined that the claimed condition was at least as likely as not incurred in or caused by his military service. For rationale, she noted that it appeared that the Veteran did not experience psychiatric symptoms prior to his military service. While the exact date of onset of his panic disorder was not known, it appears to have begun shortly after his military service concluded. Thus, it was at least as likely as not to have been caused by his military service. Subsequently dated VA treatment records (through October 2016) show continued treatment for mental health symptoms, primarily diagnosed as anxiety and depression. Analysis Clearly, as summarized above, it was the VA examiner's opinion in June 2016, that the proper mental health diagnosis was panic disorder without agoraphobia, and that this disorder was of service origin. It can also be said that she is a trained medical professional providing an opinion within her area of expertise that was based on full consideration of the Veteran's medical history and assertions. Thus, the Board finds no basis to reject this supportive opinion, and has accorded it significant probative weight with respect to establishing the nexus element of the claim for service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102 (2017); see also 38 U.S.C. § 5107 (2012); Gilbert, 1 Vet. App. at 53-56. Therefore, given the facts of this case, and resolving reasonable doubt in the Veteran's favor, the Board concludes that the criteria for direct service connection for panic disorder without agoraphobia, the psychiatric disorder with which the VA examiner diagnosed the Veteran, are met. Finally, the Board notes that the issue on appeal has previously been characterized as entitlement to service connection for an acquired psychiatric disorder, including PTSD, GAD, cognitive disorder, and panic disorder. However, given that there is no indication that there are psychiatric symptoms clearly attributable to a psychiatric disorder other than panic disorder without agoraphobia, for which service connection is being granted, further discussion of PTSD or any other psychiatric disorder is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 (2017) dictates that such signs and symptoms be attributed to the service-connected disability or disabilities); see also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (considering the possibility that bipolar disorder and PTSD did not constitute the same disability, but rejecting this argument based on the facts of that case). Moreover, as to a diagnosis of PTSD, the VA examiner specifically noted that the criteria for such a diagnosis were not met. ORDER Entitlement to service connection for panic disorder without agoraphobia is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs