Citation Nr: 18139956
Decision Date: 10/01/18	Archive Date: 10/01/18

DOCKET NO. 16-22 529
DATE:	October 1, 2018
ORDER
Entitlement to service connection for an acquired psychiatric disorder, diagnosed as a panic disorder, is granted.
FINDING OF FACT
The Veteran has an acquired psychiatric disorder, diagnosed as a panic disorder, that is, as likely as not, causally related to the Veteran’s active duty service. 
CONCLUSION OF LAW
Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as a panic disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from July 1986 to June 1995.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  
With respect to the Veteran’s original claim for service connection for PTSD, the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record).  As the Veteran has several psychiatric diagnoses in his treatment records, the Board has expanded the Veteran’s original claim for service connection for PTSD to a claim of service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder, and a panic disorder. 
In July 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of his testimony is associated with the claims file.  During the hearing, the Veteran waived initial consideration by the agency of original jurisdiction (AOJ) of additional evidence submitted since the May 2016 Statement of the Case (SOC).  38 C.F.R. § 20.1304.
Veterans Claims Assistance Act of 2000 (VCAA)
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. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  
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 for an Acquired Psychiatric Disorder, to include a Panic Disorder
The Veteran originally filed a claim for PTSD in April 2014, asserting that in-service stressors while stationed in the Philippines and later while deployed for Operation Desert Storm contributed to his mental disorder.  The Veteran has been in treatment for various psychiatric disorders since January 2002.  
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; 38 C.F.R. § 3.303. 
Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303. 
However, service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 
In addition to the above, establishment of service connection for PTSD, as opposed to other acquired psychiatric disorders, requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). 
After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record.  See 38 U.S.C. § 7104(a).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 
In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another.  See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995).  This responsibility is particularly important where medical opinions diverge.  The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another.  See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Evidence and Analysis
The Veteran’s service treatment records are negative for complaints or findings of any psychiatric disorder.  He did not receive a medical examination when departing active service in 1995.
The Veteran has asserted two different periods where his stressors occurred that contributed to his psychiatric disorder.  First, during his assignment to Clark Air Base in the Republic of the Philippines from 1987 to 1990, the Veteran has asserted that the multiple nearby terrorist attacks by the New People’s Army terrorist group that resulted in multiple American deaths in the vicinity of the Veteran’s off-base home at the time created a high degree of stress and anxiety.  In addition, the Veteran has asserted that his deployment to Saudi Arabia, in the vicinity of Dhahran from February 1992 to April 1992, created additional stress and anxiety.  The Board notes that the RO has corroborated and verified these stressors as of May 2016, and thus the requirement for an in-service incident, injury, or illness is met.
The Veteran has received two different VA examinations for his mental disorders.  In March 2015, the Veteran received an initial PTSD examination.  The VA psychologist noted the presence of stressors necessary to meet Criterion A, adequate to support a diagnosis of PTSD, that were related to fear of hostile military or terrorist activity, but the examiner declined to make a diagnosis of PTSD, noting the other criteria as required by DSM-5 were not satisfied.  The examiner did note increased anxiety in the Veteran but declined to make a formal diagnosis of any other mental disorder.  Because no diagnosis was made of PTSD or another acquired psychiatric disorder, the examiner declined to formally opine on service connection for any mental health-related symptoms.  The examiner also made a comment in the report of this examination that the objective testing was possibly invalid, and as such, the testing profile was considered invalid for diagnostic purposes.
The Veteran received another VA examination for his claimed mental disorders in December 2015.  Here, the VA psychologist made a diagnosis of panic disorder, and no other psychiatric disorder.  Unlike the previous VA examination described above, this examiner found the Veteran’s responses to result in a valid profile suitable for diagnostic purposes.  The Veteran described the same stressors that occurred during active service as noted previously.  The examiner noted chronic sleep impairment and considered the sleep impairment to be symptomatic of the Veteran’s reaction to his traumatic events.  The examiner recorded the Veteran’s recurrent and unexpected panic attacks, which he described as an abrupt surge of intense fear or intense discomfort that reaches a rapid peak, and noted multiple symptoms associated with panic disorder pursuant to the DSM-5.
The December 2015 examiner provided a positive opinion for service connection of the diagnosed panic disorder, opining that it is at least as likely as not (50 percent or greater probability) that the panic disorder is related to the Veteran’s trauma and anxiety experiences on active duty.  This examiner also confirmed there is not a valid diagnosis of PTSD pursuant to the DSM-5.  The examiner’s rationale was that the report of symptoms satisfied the DSM-5 criteria for panic disorder and no other, which was managed with prescription anxiolytic medication that the Veteran had been taking since August 2004.
This examiner provided an additional opinion based on the previous examination of December 2015, noting now that the panic disorder that he had previously opined as more likely than not as being related to active service, was now less likely than not as being related to active service while in the Philippines from 1987 to 1990.  The examiner did not comment on the relationship of the panic disorder already diagnosed with the second period of stressors from the Veteran’s deployment to Saudi Arabia for Operation Desert Storm.  The examiner’s rationale was that the Veteran was being treated for other psychiatric issues, such as depression, which did not have their foundation in active service, and thus nexus for the purposes of service connection could not be established.
The Veteran testified before the undersigned Veterans Law Judge in July 2017, speaking on the record as to the stressors he had previously described to VA examiners and in lay statements.  The Board notes the testimony of the Veteran especially in relation to his stresses and fears during the two periods in question of his active service and considers this testimony to be highly probative, as it corroborates the symptoms and history the Veteran provided in his earlier VA examinations.  The Board notes the Federal Circuit has deemed that a Veteran can testify as to his own psychiatric symptoms and history.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (at least on chronicity of symptoms in service and continuity of symptoms after service questions); see also Culver v. Derwinski, 3 Vet. App. 292 (1992) (nervous breakdown soon after service). In order to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; “[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 471 (1994).
Here, the Board considers the March 2015 VA examination to be of limited probative value, because it considered only the possibility of PTSD and not other acquired psychiatric disorders.  The Board notes that this examiner found stressors adequate to meet Criterion A as defined in the DSM-5 for a PTSD diagnosis, but did not attempt to relate those findings to any other possible psychiatric disorder.  As such, the Board notes the finding of no diagnosis of PTSD, but the examiner went no further in considering all possible diagnoses, given the claim. In addition, the examiner noted that he considered the Veteran’s profile during the assessment to be possibly invalid because the Veteran misinterpreted a large number of questions.  It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). Here, because of the inadequate discussion of the findings of the examination, the Board finds that this examination to be of limited probative value. Id.
The Board considers the December 2015 VA examination and opinion for service connection to be of considerable probative value.  To have probative value, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  In this examination, the examiner conducted a thorough interview and analysis and provided a reasoned opinion based on examination of the Veteran’s medical file and other records.  The examiner noted the Veteran’s symptoms and history against the two periods of active service pertinent to the claim and wrote a sound opinion in favor of service connection.  A medical opinion will be considered adequate when it is based upon consideration of the Veteran’s prior medical history and examinations and provides a sufficiently detailed description of the disability so that the Board’s “evaluation of the claimed disability will be a fully informed one.” Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (internal quotation marks omitted); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).
However, this same examiner provided an alternative medical opinion in May 2016 based on the same December 2015 examination, when asked by VA to consider the stressors in relation to the Veteran’s service at Clark Air Base in the Republic of the Philippines from 1987 to 1990.  The examiner noted that since those Clark Air Base stressors had not been verified at the time, that he could not provide a medical opinion supporting a nexus between those particular events and the Veteran’s diagnosed panic disorder.  The Board considers that May 2016 opinion to be of no probative value because other VA documents in the Veteran’s claims file, to include the VA Form 21-2507 Request for Examination for that particular opinion, dated April 26, 2016, do indicate that the stressors are “considered verified for Clark Air Base” for the applicable dates.  In addition, the May 2016 Statement of the Case (SOC) specifically notes that “[VA] concede[s] [the Veteran] experienced a stressful event in service in service or fear of hostile military or terrorist activity.”  Additionally, the SOC also said VA “concede[s] [the Veteran experienced a stressful event in service while stationed at the Clark Air Base in the Philippines.”  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value).
In this case, the Board finds that the evidence is in equipoise as to whether the Veteran has a current diagnosis of an acquired psychiatric disorder, diagnosed as a panic disorder, related to active service. The Veteran’s lay statements as to his experiences in service have been consistent with his duties and experiences in active service, which have been corroborated by the Veteran’s testimony and his service personnel and medical records.  The Board considers the December 2015 VA examination and positive opinion to outweigh the negative evidence of an opinion based on an incorrect premise (i.e., the May 2016 alternative VA opinion baded upon the incorrect premise that the claimed stressors had not been verified, when in fact they had been conceded).  Additionally, the Board gives strong weight to the Veteran’s July 2017 testimony before the undersigned Veterans Law Judge, which corroborates the facts shown in the Veteran’s medical and personnel records along with the highly probative medical examination and opinion of December 2015.  Therefore, resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not that the Veteran has a diagnosis of a panic disorder that is linked to the Veteran’s in-service stressors. The Veteran is therefore entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for an acquired psychiatric disorder diagnosed as a panic disorder.
 
MICHAEL A. PAPPAS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Setter, Associate Counsel