Citation Nr: 1806717	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  12-30 669A	)	DATE
	)
	)

On appeal received from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for an acquired psychiatric disability, including panic disorder without agoraphobia.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

W.V. Walker, Associate Counsel






INTRODUCTION

The Veteran served on active duty from January 1999 to March 2003.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  Jurisdiction since transferred to the VA RO in Waco, Texas.  

In November 2017, the Veteran failed to appear for a videoconference hearing and has not provided good cause for failing to appear.  The hearing notices were not returned as undeliverable.  Consequently, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704.


FINDING OF FACT

The Veteran's acquired psychiatric disability was not caused or aggravated by her active duty service or service-connected disabilities. 


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1101, 1110,1131, 5103, 5103A, 5107, 7109 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310, 3.655, 20.901 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

As discussed below in greater detail, the Veteran was afforded an opportunity to undergo a second VA examination but she failed to RSVP which has been documented in the record.  Neither the Veteran nor her representative has provided any reason for her failure to respond. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4), 3.655.  There is also no evidence of record indicating that the Veteran requested that the examination be rescheduled. 

The Board observes that recent communications to the Veteran have not been returned as undeliverable.  Further, there is no indication that the Veteran has provided a notice of a change in contact information.

As the Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996).  "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Olson v. Principi, 3 Vet. App. 480, 483 (1992).  The Board finds that the RO's efforts in attempting to arrange for a second examination were sufficient, and no further efforts to secure a response from the Veteran are required. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993).

Given the foregoing, the Board finds that VA has substantially complied with the Board's prior remand instructions with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. at 268 where there was substantial compliance with Board's remand instructions).




Applicable Law

Direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a).  Direct service connection generally requires credible and competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).  Consistent with this framework, direct service connection is warranted for a disease first 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).

Service connection may be granted for a disability on a secondary basis if the disability is proximately due to or is aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448.  Service connection on a secondary basis requires credible and competent evidence that shows (1) that a present disability exists and (2) that the present disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310; see also Allen, 7 Vet. App. at 439.

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 claimant prevailing in either event. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  When the preponderance of the evidence is against the claim, the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Analysis

The Veteran has submitted evidence of a current diagnosis of an acquired psychiatric disability, including a panic disorder. See February 2012 Private Treatment Records, p. 15.  Thus, the Board finds that the first element of service connection is established. See Holton, 557 F.3d at 1366; Allen, 7 Vet. App. at 439.

The Board also finds that the evidence supports a finding of an in-service injury.  Specifically, the Veteran reported being frequently exposed to grieving families, deceased veterans, and other emotional situations including the terrorist attacks on September 11, 2001. See February 2010 Statement in Support of a Claim.  The Veteran contends that these exposures caused her to develop her anxiety/panic disorder.  The Board finds the Veteran's statements to be credible.  Accordingly, the Board finds that the second element of direct service connection is established. See Holton, 557 F.3d at 1366.

The Veteran is service-connected for several other disabilities.  Accordingly, the second element of secondary service connection is also established. See Allen, 7 Vet. App. at 439

With respect to a nexus, there is insufficient competent evidence to demonstrate a direct service connection nexus between the Veteran's in-service injuries, or her service-connected disabilities, and her acquired psychiatric disability.  

The Veteran's service treatment records are silent for any in-service complaints of anxiety or panic attacks.  The Veteran underwent a VA examination in June 2010 and the examiner opined that the Veteran's acquired psychiatric disability was not caused by her active duty service.  However, in formulating the opinion, the examiner failed to address the Veteran's contentions that her frequent exposure to grieving families, being stationed at Bolling AFB in Washington, DC during the attacks on September 11, 2001, and her other service-connected conditions caused or aggravated her condition.  As a result, the Board remanded this matter in December 2015 for a VA opinion that addresses these contentions.  

However, the Veteran failed to RSVP to the VA examination that was scheduled in January 2016.  The examination was subsequently cancelled in accordance with the Compensation and Pension Disability Examinations Procedure Guide.  There is no evidence of record that indicates that the Veteran requested that the examination be rescheduled, or that provides good cause for her failure to respond. See 38 C.F.R. § 3.655.  There is no indication in the claims file that the Veteran did not receive notice of the examination, and neither she nor her representative have communicated any changes in the Veteran's contact information.  

The Veteran submitted other VA and private treatment records that document her ongoing treatment for anxiety, panic attacks and depression. See April 2010 VA Treatment Records, p. 8; May 2010 Private Treatment Records; September 2010 VA Treatment Records; February 2012 Private Treatment Records, pp. 12, 15.  These records indicate that the Veteran began to experience increasing anxiety in early 2005, see April 2010 VA Treatment Records, p. 8, and her first panic attack occurred in July 2005. See June 2010 VA Examination.  However, none of these records contains any discussion of the impact of the Veteran's service or service-connected disabilities on her acquired psychiatric disability.  Moreover, these records do not provide an opinion as to the etiology of the Veteran's acquired psychiatric disability.

The Board acknowledges the Veteran's lay statements that her acquired psychiatric disability is the result of her service and that her disability is aggravated by her service-connected disabilities.  Although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case-the etiology of an acquired psychiatric condition-falls outside the realm of common knowledge of a layperson.  In this regard, while the Veteran can competently report her symptoms, any opinion regarding whether her acquired psychiatric disability is related to her service or service-connected disabilities requires medical expertise that the Veteran has not demonstrated.  The Board finds that the Veteran is not competent to establish that her acquired psychiatric condition was caused by her in-service injuries or other service-connected disabilities as the etiology of an acquired psychiatric condition is a complex matter outside the knowledge of laypersons. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007).  

In the January 2018 Appellate Brief, the Veteran's representative stated that the evidence as to the etiology of the Veteran's acquired psychiatric condition is "in conflict" and requested an independent medical opinion to resolve such conflict.  However, there is no evidence of record that supports a positive nexus between the Veteran's service and her current disability.  Further, and more importantly, there is no issue of such "medical complexity or controversy" to warrant such an opinion. See 38 U.S.C. § 7109; 38 C.F.R. § 20.901(d).

After consideration of all of the evidence of record, the Board finds that the evidence of record is insufficient to demonstrate a nexus between the Veteran's in-service injuries and her current acquired psychiatric disability.  The Board is mindful of the Veteran's sincere belief that her condition is due to her service; however the Veteran has not presented sufficient evidence to establish the third element of service connection. See Holton, 557 F.3d at 1366.  

The Board is grateful for the Veteran's honorable service, and this decision in no way detracts from that service.  However, for the reasons provided above, the competent and probative evidence of record preponderates against the Veteran's claim.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim for entitlement to service connection for an acquired psychiatric disability must therefore be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).


ORDER

Service connection for an acquired psychiatric condition, including panic disorder without agoraphobia, is denied.



____________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs