Citation Nr: 18158759 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 15-05 373 DATE: December 18, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with mixed anxiety and depressed mood and panic disorder without agoraphobia and to include as secondary to service-connected disabilities, is granted. FINDING OF FACT The Veteran’s acquired psychiatric disorder is proximately due to his service-connected disabilities. CONCLUSION OF LAW The criteria for secondary service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from June 1986 to November 2009. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his February 2015 VA Form 9, Substantive Appeal, the Veteran requested a hearing before the Board. In May 2018 correspondence, the Board scheduled a hearing in July 2018. In a July 2018 statement, received prior to the date of the hearing, the Veteran requested that his Board hearing be rescheduled at a later date. In October 2018 correspondence, the Board rescheduled the Veteran’s Board hearing in November 2018. The Veteran requested the November 2018 Board hearing be rescheduled for a later date in a November 2018 telephone call to VA. However, the Board is granting the benefit sought on appeal in full; therefore, the appellate review may proceed without prejudice to the Veteran irrespective of his request for a Board hearing. Following the December 2014 statement of the case, VA added additional medical evidence to the Veteran’s file. Pertinent evidence is initially reviewed by the agency of original jurisdiction (AOJ). Additional pertinent evidence that becomes available after the RO’s statement of the case but prior to certification to the Board is to be addressed in an additional supplemental statement of the case. 38 C.F.R. § 19.31(b). After certification to the Board, such evidence must be referred back to the AOJ for initial review. 38 C.F.R. § 20.1304(c). Exceptions are when the Veteran or his representative waive this review right, or when the Board grants the benefit being sought in full. Id. In addition, the Veteran submitted additional evidence in January 2015 without a waiver. For all substantive appeals received on or after February 2, 2013, any evidence submitted to the Board shall be subject to initial review by the Board unless the Veteran or the Veteran’s representative requests in writing that the AOJ initially review such evidence. 38 U.S.C. § 7105(e). Here, the Board is granting the benefit sought on appeal in full, so appellate review may proceed without prejudice to the Veteran. Lastly, the United States Court of Appeals for Veterans Claims (Court) has held that, although a Veteran claims service connection for a specified diagnosed disability, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any disability that may reasonably be encompassed by several factors, including the Veteran’s description of the claim, the symptoms the Veteran describes, and the information the Veteran submits or that VA obtains in support of the claim. The Court reasoned that a Veteran does not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Here, although the Veteran filed his claim seeking service connection for depression specifically, the record reflects diagnoses of adjustment disorder with mixed anxiety and depressed mood and panic disorder without agoraphobia. The Board therefore finds that, pursuant to Clemons, the Veteran’s claim seeking service connection for depression is more accurately characterized as one for any acquired psychiatric disorder and has recharacterized the issue accordingly. 23 Vet. App. at 5-6. Service Connection for an Acquired Psychiatric Disorder The Veteran and his representative contend the Veteran’s acquired psychiatric disorder is secondary to pain from his service-connected disabilities. See VA Form 9, Substantive Appeal, dated February 13, 2015; Informal Hearing Presentation, dated November 20, 2018. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Under 38 C.F.R. § 3.310, secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A March 2010 rating decision granted service connection for degenerative arthritic changes and intervertebral disc syndrome of the lumbar spine and cervical disc herniation with surgical repair and intervertebral disc syndrome with degenerative arthritic changes, effective December 1, 2009. In addition, the July 2011 VA examiner diagnosed the Veteran with adjustment disorder with mixed anxiety and depressed mood. Further, VA treatment records also reflect a diagnosis of panic disorder without agoraphobia. Thus, the first two elements of the claim seeking service connection for an acquired psychiatric disorder on a secondary basis are met. In addition, a private physician opined in January 2015 that the Veteran’s major depressive disorder and anxiety are most likely caused by or a result of chronic pain from service-connected physical disabilities. The Board gives great probative weight to the January 2015 private opinion as the private physician examined the Veteran and reviewed the Veteran’s VA treatment records. Further, the opinion is consistent with the Veteran’s subjective reports and is consistent with the record, to include the Veteran’s subjective reports and the medical evidence of record. The Board acknowledges that following the July 2011 VA examination, the VA examiner stated that there was no objective evidence to support the presence or treatment of a mental disorder related to the Veteran’s chronic pain. The Board places less weight of probative value on this opinion as it does not consider the Veteran’s competent statements regarding the symptoms he experiences. Further, the July 2011 VA examiner indicated that it would be mere speculation to opine as to whether the Veteran’s acquired psychiatric disorder is a continuation of psychiatric symptoms reported in service. Further discussion of the VA examiner’s statement and the reported symptoms in service is unnecessary as the Board is granting the Veteran’s claim in full on a secondary basis. Thus, resolving any reasonable doubt in favor of the Veteran, the Board concludes that the requirements of 38 C.F.R. § 3.310 have been met; therefore, service connection for an acquired psychiatric disability as secondary to service-connected disabilities, is warranted. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel