Citation Nr: 18151894 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-10 759 DATE: November 20, 2018 ORDER The petition to reopen the claim of entitlement to service connection for is granted. Entitlement to service connection for panic disorder with agoraphobia is granted. FINDINGS OF FACT 1. The Veteran’s claim for service connection for agoraphobia with panic attacks was denied in a September 1999 rating decision that was not timely appealed, nor was any new and material evidence submitted within the appeal period; that decision is final. 2. The evidence received since the September 1999 rating decision is new and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s panic disorder with agoraphobia was incurred during service. CONCLUSIONS OF LAW 1. The September 1999 rating decision denying the claim of service connection to agoraphobia with panic attacks is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. New and material evidence has been received; the claim of entitlement to service connection for agoraphobia with panic attacks is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for panic disorder with agoraphobia are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Navy from November 1983 to January 1993. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran requested a hearing on her March 2016 VA Form 9. However, in an October 2018 correspondence, she withdrew that request. As such, her hearing request has been withdrawn and this case is properly before the Board. See 38 C.F.R. § 20.702(e) (2018). Service Connection 1. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for panic disorder with agoraphobia A September 1999 rating decision denied service connection for agoraphobia with panic attacks on the basis that there were no chronic or permanent residuals of the Veteran’s in-service panic disorder with agoraphobia. The Veteran did not submit a timely notice of disagreement or new and material evidence during the appeal period, and the decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103 (2018). Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2018). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a) (2018). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the September 1999 rating decision includes evidence that is both new and material to the claim. For example, VA treatment records indicate a current diagnosis of panic disorder with agoraphobia. Additionally, the Veteran submitted lay evidence noting the ongoing nature of her post-service symptoms. This new evidence addresses the reason for the previous denial; that is, a current disability, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. 2. Entitlement to service connection for panic disorder with agoraphobia Service connection is warranted where the evidence of record established that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting, such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ – the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2018). Presumptive service connection can be established based upon continuity of symptomatology for those chronic diseases set forth in 38 C.F.R. § 3.309(a). 38 C.F.R. §§ 3.307(a)(2)-(3), 3.309(a) (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018). The Veteran claims entitlement to service connection for panic disorder with agoraphobia. As outlined below, the evidence in support of the claim is at least in equipoise. The Veteran’s March 1983 report of medical examination at induction, as well as multiple subsequent medical evaluations during service indicate that psychiatric evaluation was normal. See Service Treatment Records, dated September 1988, November 1987, January 1984, March 1983. The first evidence of psychiatric symptoms is in July 1992. At that time, the Veteran was seen for symptoms of emotional stress, including crying and an inability to work. Treatment notes indicate that the Veteran felt she was being singled out at work by her supervisor. She was treated with medication and counseling. An August 1992 report of medical board noted that the Veteran had been good health until October 1991 when she began to feel anxious and nervous. She subsequently developed mood swings, irritability, and anxiety attacks, which led her to withdraw and avoid contact with others. She also reported that her anxiety impacted her sleep and appetite. During the evaluation, she endorsed a family history of mental health disabilities, but she denied a personal history of psychiatric hospitalizations or evaluations. In November 1992, a Physical Evaluation Board found the Veteran unfit for duty due to her panic disorder with agoraphobia. The Veteran received a VA psychiatric examination in March 1999. At that time, the Veteran acknowledged that she had an abusive childhood and that she had witnessed her mother commit suicide. She went on, however, to say that she enjoyed being in the Navy, until she had difficulty with her supervisor. She noted that when she was transferred to another division, her symptoms alleviated and she did well until she was transferred back to her prior supervisor. Thereafter, her symptoms were exacerbated, she became “hysterical” and was sent to a psychiatrist who diagnosed her with agoraphobia with acute panic attacks. She stated that since leaving the Navy, she became fearful to go into a crowded area and preferred to stay at home. She stated that she had difficulty with authority figures, as they reminded her of her chief in the Navy. The VA examiner diagnosed the Veteran with posttraumatic stress disorder, primarily due to childhood trauma, and agoraphobia with panic disorder by history. Throughout the appeals period, the Veteran has been treated by VA mental health providers for panic disorder with agoraphobia. See VA Treatment Records, dated August 2016, June 2016, April 2016, September 2013, April 2013. Additionally, the Veteran had her first documented evidence of a panic disorder was during service. See Service Treatment Records, dated August 1992. As such, the Board finds that an in-service event, injury, or illness, the first and second Holton elements are met. The Board further finds that the evidence is at least in equipoise that there is a causal relationship between the in-service event, illness, or injury, and the Veteran’s current panic disorder with agoraphobia, the required third Holton element of direct service connection. The Board acknowledges that a March 1999 VA examiner opined that the Veteran’s posttraumatic stress disorder (PTSD) was primarily due to childhood trauma. Nevertheless, as the VA examiner did not render an etiological opinion regarding the Veteran’s diagnosed panic disorder, the March 1999 opinion is not probative regarding the etiology of the Veteran’s panic disorder. The Board acknowledges that the record does not contain a probative nexus opinion. Nevertheless, after reviewing all the lay and medical evidence of record, the Board finds that it is at least as likely as not that the Veteran’s panic disorder with agoraphobia was incurred during active service. See Davidson v. Shinseki, 581 F.3d at 1316 (noting that the absence of a “valid medical opinion” is not an absolute bar to service connection); Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that lay testimony is competent to establish the presence of observable symptoms). See also 38 U.S.C. § 1154 (a) (2012) (requiring VA to include in its service connection regulations that due consideration be given to “all pertinent medical and lay evidence”). As noted above, the Veteran’s report of medical examination at induction and for many years thereafter are silent for any psychiatric diagnoses or symptoms. Likewise, her service treatment records from induction until July 1992 are also silent for any complaints of, treatment for, or diagnoses related to her panic disorder with agoraphobia. As the condition was first diagnosed almost 9 years into the Veteran’s active service and the lay evidence indicates continual symptoms from that time until present, the Board finds that the Veteran’s panic disorder with agoraphobia began during active service and has continued since that time. Thus, resolving doubt in favor of the Veteran, the Board finds that her panic disorder with agoraphobia is causally related to service. As such, service connection is warranted in this case. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); Gilbert, 1 Vet. App. at 53-56. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel