Citation Nr: 1804357 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 09-20 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder REPRESENTATION Appellant represented by: James J. Perciavalle, Agent ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to April 1970. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veteran's Affairs (VA) Regional Office (RO) in Waco, Texas, denying service connection for an anxiety disorder. The Board remanded this matter in January 2016 for a new VA examination. The RO provided the Veteran a new examination and issued a Supplemental Statement of the Case. The matter returns the Board for further adjudication. In November 2017, the Veteran's representative requested a 90 day extension to submit additional evidence, which would keep the record open until February 20, 2018. This request is denied. However, given the outcome of this appeal, which grants service connection for an acquired psychiatric disorder, the Board finds that no conceivable prejudice to the Veteran could result from this adjudication prior to February 20, 2018. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). FINDING OF FACT The Veteran's acquired psychiatric disorder, diagnosed as generalized anxiety disorder is related to his active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for an acquired psychiatric disorder, diagnosed as generalized anxiety disorder has been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veteran's Claims Assistance Act (VCAA) defines the obligations of the VA to notify the Veteran of evidence needed to substantiate her claim. Upon receipt of a substantially complete application, the VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004). This decision constitutes a full grant of the benefits on appeal; therefore, no further discussion regarding VCAA notice or assistance is required. II. Service Connection Relevant law Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (2012); 38 C.F.R. § .102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for a claim to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran contends that he developed an acquired psychiatric disorder during basic training in active service and has continued to have a psychiatric disorder since service. The Veteran also reported during the October 2012 VA examination, that he has held approximately 50 jobs since service due to his anxiety. 1) Current Disability In the present case, the Board finds that the Veteran has an acquired psychiatric disorder. In June 2008, the Veteran was diagnosed with panic disorder without agoraphobia, and adjustment disorder with depression and anxiety. See June 2008, Pittsburg VA Medical Center (VAMC) Initial Evaluation (CAPRI, p. 367). In October 2013, the Veteran and his representative submitted a private medical opinion from Dr. L.B. Based on his evaluation of the Veteran, Dr. L.B. diagnosed the Veteran with generalized anxiety disorder and panic disorder with agoraphobia. See October 2013, Medical Treatment Record. The Veteran was afforded a VA examination in October 2012. The VA examiner found that the Veteran's claim file "does not contain any records substantiating that he was ever diagnosed with an anxiety disorder." See June 2012, Compensation and Pension (C&P) Examination for Mental Disorders. This examination was found to be inadequate because it failed to consider the Veteran's treatment and diagnosis for anxiety in the record. Pursuant to the January 2016 remand, the Veteran was afforded a second VA examination in January 2017. The second VA examiner found that although the Veteran's post service records indicated a psychiatric disorder, that his current examination did not "warrant a psychiatric diagnosis." See January 2017, C&P Examination, Mental Health/Psychology Examination. Despite the findings of the VA examiners, the Board finds that the Veteran has a current disability. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication). Here, the Veteran filed an informal claim for service connection in June 2008 and records show that he was diagnosed with generalized anxiety disorder since at least June 2008. Thus, the record shows the Veteran was diagnosed with a psychiatric disorder during the pendency of the claim. Indeed, the examiner in January 2017 acknowledged that the Veteran's post-service treatment records confirm he was diagnosed with an acquired psychiatric disorder. 2) In Service The Board also finds that the second element of service connection, an in-service incurrence or event, has been met. The Veteran's service treatment records confirm that he complained of dizziness, heart palpitations, anxiety attacks, and difficulty breathing in October 1968. He was diagnosed with mild occasional hyperventilation and general nervousness on occasion. During his examination by Dr. L.B., the Veteran reported that he experienced anxiety while in service and was told he had anxiety by a military physician during service. The Board finds this lay evidence is credible even though the service records do not show a diagnosis of an acquired psychiatric disorder during service. Moreover, the Veteran's statements regarding his active service are consistent with the service records, showing that he stated he was unhappy and wanted to leave active service, which led to his discharge from active service. See February 1970 Military Personnel Record. 3) Nexus Turning to the question of whether there is a nexus, or link, between the current shown disability and service, the Board finds that the evidence favors a finding that an acquired psychiatric disability was incurred in service is, at least, in relative equipoise. The VA examiners in October 2012 and January 2017 opined that the Veteran's anxiety was less likely than not incurred in or caused by service because he did not currently have an acquired psychiatric disorder. The VA examiner in October 2012 also stated that the Veteran's complaint of palpitations in service was insufficient for an Axis 1 diagnosis and that the Veteran's record did not show any treatment or diagnosis for anxiety. Since the VA examiners did not fully consider the prior diagnosis and treatment for an acquired psychiatric disorder, the Board finds these VA examinations have little probative value. These opinions were based on an inaccurate factual premise of a lack of current diagnosis of an acquired psychiatric disorder. See Reonal v. Brown, 4 Vet. App. 458, 461 (1993) (medical opinion based on inaccurate factual premise has no probative value.) As noted above, the Veteran underwent a private psychological examination in October 2013. Based on his interview and examination, Dr. L.B. stated that the Veteran "suffers from two psychiatric disorders, as noted above, namely generalized anxiety disorder and panic disorder. These clearly arose during basic training in the military and appear to have been a major reason for his discharge." See October 2013, Medical Treatment Record. Dr. L.B. further opined that "it is more likely than not that this Veteran's in-service symptoms at the time of basic training were the onset of his clinical anxiety disorders." Dr. L.B provided rationale for his opinion, stating that his opinion is based on his evaluation of the Veteran and review of the service and post-service treatment records of the Veteran including consideration of the Veteran's statements of events during active service which led to his discharge from active service. The October 2013 opinion is consistent with the Veteran's post-service treatment record showing treatment for anxiety, panic disorder, and other psychiatric disorders. Therefore, the Board accords great probative value to the private medical opinion. Based on the above and resolving all reasonable doubt in favor of the Veteran, the Board finds that the weight of the evidence is at least in equipoise as to whether the Veteran's current acquired psychiatric disorder, to include generalized anxiety disorder, is causally related to the in-service psychiatric symptoms; thus, the criteria for service connection for anxiety disorder has been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is granted. The Board notes that the evidence of record indicates that the Veteran may have other diagnosed psychiatric disorders, including adjustment disorder and panic disorder. The Board is precluded from differentiating between symptoms of multiple disabilities, where a Veteran is diagnosed with multiple psychiatric disorders, and it is unclear from the record which symptoms are attributable to each disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In this case, the Board is unable to differentiate the symptomology of the acquired psychiatric disorder, to include generalized anxiety disorder from the symptomology of adjustment disorder, or any other psychiatric disorder. As such, the Board has attributed all psychiatric disorder symptomatology and impairment to the now service-connected acquired psychiatric disorder of anxiety disorder, and the RO should consider all of the Veteran's psychiatric symptomology and impairment when assigning an initial disability rating. For these reasons, the Board need not consider whether service connection is warranted for any other psychiatric disorder. ORDER Service connection for an acquired psychiatric disorder, diagnosed as generalized anxiety disorder is granted. (CONTINUED ON NEXT PAGE) _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs