Citation Nr: 1803242 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-10 747A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from May 1990 to September 2010, including service in Iraq in support of Operation Iraqi Freedom from March 2004 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied, in pertinent part, the Veteran's claim of service connection for an acquired psychiatric disability, to include PTSD and anxiety (which was characterized as PTSD). The Veteran disagreed with this decision in March 2012. He perfected a timely appeal in March 2014. The Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence. The medical evidence indicates that the Veteran has been diagnosed as having PTSD and anxiety. Thus, the claim of service connection for an acquired psychiatric disability, to include PTSD and anxiety, has been recharacterized as stated on the title page of this decision. FINDINGS OF FACT 1. The record evidence shows that the Veteran served in combat in Iraq between March 2004 and March 2005; thus, his in-service stressor is corroborated. 2. The record evidence shows that the Veteran has been diagnosed as having and treated for PTSD and anxiety since his service separation. 3. The record evidence is in relative equipoise as to whether the Veteran's current acquired psychiatric disability, to include PTSD and anxiety, is related to active service. CONCLUSION OF LAW An acquired psychiatric disability, to include PTSD and anxiety, was incurred in active service. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he incurred his current acquired psychiatric disability (variously diagnosed as PTSD and anxiety) during active service. He specifically contends that the in-service stressor of serving in combat in Iraq in support of Operation Iraqi Freedom between March 2004 and March 2005 caused or contributed to his current acquired psychiatric disability. Factual Background and Analysis The Board finds that the evidence is in relative equipoise as to whether the Veteran's current acquired psychiatric disability, to include PTSD and anxiety, is related to active service. The Board notes initially that a review of the Veteran's available service treatment records shows no complaints of or treatment for an acquired psychiatric disability at any time during active service, including after he was in combat in Iraq between March 2004 and March 2005. The Board notes in this regard that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The Board next notes that some of the Veteran's service treatment records are missing or unavailable. Following several attempts to obtain these records, the Agency of Original Jurisdiction (AOJ) (in this case, the RO) concluded in a July 2011 memorandum to the file that the Veteran's service treatment records were missing or incomplete. In cases where the Veteran's service treatment records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA also must provide an explanation to the appellant regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). Having reviewed the record evidence, the Board finds that it is reasonably certain that any additional service treatment records not currently associated with the Veteran's claims file do not exist and further efforts to attempt to obtain them would be futile. With respect to the Veteran's assertion that his in-service stressor relates to his combat experiences while serving in Iraq, the Board acknowledges that his DD Form 214 clearly shows that he served in Iraq between March 2004 and March 2005. This form also shows that he was awarded the Combat Action Ribbon. Accordingly, the Board concedes that the Veteran's claimed in-service stressor of serving in combat in Iraq is credible because it is consistent with the facts and circumstances of his active service. See 38 U.S.C. § 1154(b) and 38 C.F.R. §§ 3.304(d) and (f). The remaining medical evidence of record both supports and goes against the Veteran's claim of service connection for an acquired psychiatric disability, to include PTSD and anxiety. For example, a review of private outpatient treatment records dated in 2010 and 2011 from R. W., M.D., shows that this physician diagnosed the Veteran as having "acute" PTSD. Similarly, in a letter dated in June 2011 and included with the records from Dr. R. W., C. V. D., Ph.D., provided a summary of the Veteran's outpatient psychological treatment which included a diagnosis of PTSD based on his reported in-service combat experiences. The Veteran's VA outpatient treatment records dated in 2010-2011 also document ongoing treatment for PTSD. In contrast, on VA PTSD examination in July 2011, the Veteran's complaints included problems with yelling. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran had been married and divorced twice and had been in a relationship with his current significant other for 1 year. He reported having friends, fishing, and enjoying the outdoors. Mental status examination of the Veteran showed he was clean, appropriately dressed, neatly groomed, unremarkable psychomotor activity, spontaneous, clear, and coherent speech, intact attention, full orientation, unremarkable thought process and content, no delusions, hallucinations, sleep impairment, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, or suicidal or homicidal ideation, good impulse control, no episodes of violence, an ability to maintain minimum personal hygiene, a normal memory, and no problems with activities of daily living. The Veteran identified his in-service combat experiences in Iraq as his in-service stressor. The VA examiner concluded that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD. This examiner stated that the Veteran reported that he had been "symptom free" until his house burned down following a lighting strike on it in July 2010. This examiner also stated that she would have to resort to speculation to in order to opine whether the Veteran's Axis I diagnosis of anxiety, not otherwise specified, was related to active service. The rationale for this opinion was that the Veteran was able to have a 20-year career in the military, retired at the rank of lieutenant colonel, and completed 2 Master's degrees in that time period. The rationale also was that the Veteran currently was in a stable relationship with a significant other. The rationale further was that the Veteran reported minimal symptoms and had no objective evidence of functional impairment. The Axis I diagnosis was anxiety, not otherwise specified. The Board acknowledges that the July 2011 VA examiner stated that she could not provide an opinion concerning the etiology of the Veteran's anxiety without resorting to mere speculation. The Court has held that medical opinions using the "mere speculation" language, without more, generally are disfavored because they are inconclusive as to the origin of a disability. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). The Court has explained that opinions which contain the "mere speculation" language, without more, amount to 'nonevidence' neither for nor against the claim because service connection may not be based on speculation or remote possibility. See Bloom v. West, 12 Vet. App. 185 (1999) (holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Having reviewed the July 2011 VA PTSD examination report, the Board finds that the VA examiner who completed this report provides sufficient explanation for her inability to provide the requested opinion concerning the etiology of the Veteran's anxiety. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (discussing adequacy of medical opinion evidence). The Veteran has contended throughout the pendency of this appeal that he incurred an acquired psychiatric disability, to include PTSD and anxiety, during active service. The Board already has conceded that the Veteran has a credible in-service stressor on which any diagnosis of PTSD must be based. The medical evidence is in relative equipoise as to whether the Veteran's current acquired psychiatric disability (diagnosed as PTSD and anxiety) is related to active service. On the one hand, the Veteran's private treating psychologist, Dr. C. V. D., and his private primary care physician, Dr. R. W., both diagnosed and treated him for PTSD in 2010-2011 immediately following his retirement from active service. Dr. C. V. D. also provided a positive nexus opinion between the Veteran's PTSD diagnosis and his credible in-service stressor of serving in combat in Iraq. On the other hand, the July 2011 VA examiner found that the Veteran's symptomatology did not meet the diagnostic criteria for PTSD. This VA examiner also could not provide an opinion as to the etiology of the Veteran's anxiety without resorting to speculation. The Board notes here that service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). Resolving all reasonable doubt in the Veteran's favor, the Board concludes that the record evidence sufficiently supports finding that the Veteran incurred an acquired psychiatric disability, to include PTSD and anxiety, during active service. See 38 C.F.R. §§ 3.102, 3.303, 3.304. In summary, the Board finds that service connection for an acquired psychiatric disability, to include PTSD and anxiety, is warranted. ORDER Entitlement to service connection for an acquired psychiatric disability, to include PTSD and anxiety, is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs