Citation Nr: 20021259 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 07-15 400 DATE: March 25, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD), panic disorder with agoraphobia, and generalized anxiety disorder (anxiety), is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his acquired psychiatric disorder, to include MDD, panic disorder with agoraphobia, and anxiety, is at least as likely as not related to his service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include MDD, panic disorder with agoraphobia, and anxiety are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Navy from October 1968 to July 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied service connection for a mental condition. The Board affirmed the denial of the Veteran’s claim in March 2010. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In November 2011, the Court issued a Memorandum Decision vacating the Board’s decision and remanding the claim back to the Board for further action. The Board then remanded the claim in April 2012. The Board again denied the claim in October 2013. The Veteran again appealed the denial to the Court, and in an October 2014 Memorandum Decision, the Court again vacated the Board’s decision and remanded the claim back to the Board. The Board then remanded the claim for additional development in March 2016. The Board most recently denied the claim again in April 2017. The Veteran again appealed the denial to the Court, and in a November 2018 Memorandum Decision, the Court again vacated the Board’s decision and remanded the claim back to the Board. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder MDD, panic disorder with agoraphobia, and anxiety In the above-mentioned November 2018 Memorandum Decision, the Court found that the Board erred when it found that the Veteran’s lay statements of experiencing psychiatric symptoms in service were not credible. The Court noted that it was not clear that the Board properly applied the reasoning of the caselaw addressing what may be inferred from the absence of certain information in medical records. The Court added that the Board did not explain why the Veteran’s psychiatric symptoms would have been noticed and recorded in service when he was treated for diarrhea, a head cold, a wart, a skin condition, epigastric pain, or when he was hospitalized for residual injuries from a motorcycle accident, or when he underwent performance evaluations. The Court found that the Board’s statement of reasons and bases for its determination that the lay statements were not credible was inadequate. The Veteran contends that he suffers from an acquired psychiatric disorder as a result of his service. The Board concludes that the Veteran has a current disability that is related to his service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As an initial matter, the Board finds that an appropriate diagnosis for posttraumatic stress disorder (PTSD) has not been established by the evidence of record. VA treatment records from June 2007 noted a diagnosis of “questionable PTSD.” Additional records from February 2013 noted “PTSD-related anxiety characteristics.” Neither of these establish a full diagnosis of PTSD as specified under 38 C.F.R. § 4.125, particularly when viewed with the other evidence of record. VA examiners in April 2013 and April 2016 both found that the Veteran did not meet the criteria for a PTSD diagnosis. A January 2016 private evaluation submitted by the Veteran, which included a review of the relevant records and a two-hour diagnostic assessment, also failed to diagnose PTSD. On the other hand, the evidence of record shows that the Veteran has been diagnosed with MDD, panic disorder with agoraphobia, and anxiety. As such, the claim has been amended accordingly. Although the Veteran’s service treatment records do not reflect complaints of any psychiatric symptoms, three of the Veteran’s alleged stressors have been confirmed by the VA. See March 2013 VA memorandum. The first stressor involves the Veteran’s ship encountering a typhoon. The second stressor involves a sailor on the Veteran’s ship throwing himself overboard and being lost at sea. The third stressor is regarding the Veteran’s motorcycle accident in service causing him severe medical injuries and requiring over one month of hospitalization. The Veteran claims that all of these incidents caused his current psychiatric disorder. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes an April 2013 VA examination and an April 2016 VA examination and accompanying addendum opinion. The April 2013 VA examiner opined that the Veteran’s anxiety was less likely than not due to his reported stressors. The examiner provided the rational that the Veteran’s records, clinical presentation, and objective test results suggest that he has underlying characterological traits that make him more susceptible to being upset by various things. The April 2016 VA examiner opined that it was less likely than not that the Veteran has a diagnosable mental health condition, including panic disorder without agoraphobia, MDD, or anxiety that is related to his military service or military stressors. The evidence in favor of the claim includes a private January 2012 psychosocial evaluation where the examiner opined that the Veteran was found to have anxiety and panic disorder without agoraphobia. After reviewing the Veteran’s military history, he noted that it appeared that the Veteran’s symptoms likely developed in response to what he experienced aboard ship as a very uncontrollable and threatening environment. The examiner concluded that the Veteran’s symptoms are more likely than not related to the Veteran’s military experiences. Another private examiner provided a positive nexus opinion in January 2016. After reviewing the Veteran’s medical record, service record, and ancillary information, the private examiner diagnosed the Veteran with MDD, panic disorder with agoraphobia, and substance abuse disorder, now in remission. The examiner noted that these disabilities began in active service and the Veteran first had a panic attack while in the Navy. The Veteran had persistent worry about anxiety and could not manage the extent of his anxiety. The examiner added that the Veteran’s symptoms began while in service and there is a clear causal relationship between his active duty service and the development of these disease processes. His reaction to being onboard ship was severe, catastrophic, and led to a complete change in his behaviors and his capacity to manage even the simplest of social circumstances with a precipitous decline in his functional capacity. The same private examiner provided an update in January 2017 and noted that the Veteran was a completely changed individual after his service, as attested by his family, friend, and by the Veteran himself. The private examiner found the April 2016 VA examination to be insufficient as it provided no additional information and was representative of an oversimplified and unsupported statement indicating that the Veteran’s symptoms of mental illness were less likely than not associated with his active duty service. He added that the VA examiner offered no clinical reasoning, differential diagnosis, or alternative explanation. The private examiner noted that there have been no diagnoses of factitious disorder or malingering suggesting that the Veteran has a lack of veracity or is manipulating the mental health care system for primary or secondary gain. He added that the lay statements from the Veteran’s brother who served on the same ship as him and his high school friend provided convincing accounts of the Veteran’s changed behavior during, and upon discharge from the Navy. In November 2019, another positive nexus opinion was provided by a different private examiner. After completing a thorough evaluation of the Veteran’s medical records and conducting a personal interview, she found that the Veteran has diagnoses for MDD, panic disorder, anxiety, and substance abuse disorder in full, sustained remission. The private examiner noted that the Veteran’s level of functioning prior to his military service and his military history and symptoms since that time do not support that he has personality pathology or a diagnosable personality disorder. She added that the Veteran’s substance abuse disorder, which progressed in severity during service, mitigated and masked any psychiatric symptoms the Veteran may have experienced while in service and after discharge, such as anxiety, panic attacks, depression, and mood temperament. The examiner noted that the fact that the Veteran’s symptoms were never reported during medical appointments in service does not reflect an absence of symptoms. It is extremely common for those dealing with substance use disorder to not seek treatment, and thus it is not surprising that the Veteran did not report his symptoms, particularly while in service. She added that it is also not standard medical practice to question a patient’s psychiatric health during routine check-ups for non-psychiatric conditions. The examiner noted that the Veteran’s substance abuse appeared to be an effort to self-medicate his mental health symptoms including depression and anxiety. She added that the Veteran’s history is clear that his psychiatric difficulties began during his military service. He felt anxious and depressed on the ship. He was frightened by incidents including ongoing typhoons, knowing that an enemy had tried to board the ship, and the death by suicide of a peer who jumped overboard. He reported feeling constrained and there was repeated reference to feelings of claustrophobia. The Veteran confirmed that his drinking escalated in the military. He continued to struggle with feeling anxious and depressed and eventually had a very serious accident while intoxicated requiring medical attention for multiple lacerations and fractures. The examiner concluded that it is more likely than not that the Veteran’s psychiatric disorder began during active duty in the Navy, noting that this is well-supported by his history of the onset of symptoms documented in the record, letters from individuals who knew him before and after his military service, and his reports on interview. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current acquired psychiatric disorder is related to his service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for acquired psychiatric disorder, to include MDD, panic disorder with agoraphobia, and anxiety is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.