Citation Nr: 20021790 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 16-48 605 DATE: March 27, 2020 ORDER New and material evidence having been received, the previously denied claims for service connection for depression, anxiety and panic attacks are reopened and are granted to this extent only. Entitlement to service connection for headaches is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include depression, anxiety, panic attacks and insomnia, is remanded. FINDINGS OF FACT 1. In August 2013, the RO denied service connection for depression, anxiety and panic attacks, finding these disabilities were neither incurred in nor caused by the Veteran’s active service. 2. The evidence added to the record since the August 2013 RO decision was not previously submitted to agency decisionmakers, is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims for service connection for depression, anxiety and panic attacks. 3. The preponderance of the evidence of record is against finding that the Veteran’s headaches are due to his period of active service. CONCLUSIONS OF LAW 1. Following the final August 2013 rating decision, new and material evidence has been presented to reopen the claims of service connection for depression, anxiety and panic attacks. 38 U.S.C. §§ 1110, 1131, 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to September 1984. The Veteran was scheduled for a May 2019 hearing at the Department of Veterans Affairs (VA) Central Office (CO) before a Veterans Law Judge of the Board of Veterans’ Appeals (Board) but he failed to report and did not request that the hearing be rescheduled. 38 C.F.R. § 20.702(e). As such, the Board finds that all due process requirements were met with regard to his hearing request. The Board notes that the evidence of record includes diagnoses of depression and anxiety. In Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam), the United States Court of Appeal for Veterans Claims (Court) found that VA should have considered alternative current conditions within the scope of the filed claim, and that diagnoses which arise from the same symptoms for which the claimant was seeking benefits do not relate to entirely separate claims not yet filed. Thus, in light of the Court’s decision in Clemons, the Board has re-characterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, panic attacks and insomnia. See Clemons, 23 Vet. App. 1. 1. New and material evidence having been received, the previously denied claims for service connection for depression, anxiety, panic attacks and insomnia is reopened The August 2013 rating decision denied service connection for depression, anxiety and panic attacks. This decision was not appealed and is therefore final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.104. Following this decision, the Board has received new and material evidence, specifically lay reports of in-service incidents, which he claims led to his current psychiatric problems, to reopen the claims of service connection for depression, anxiety and panic attacks. 38 U.S.C. §§ 1110, 1131, 5108, 7104, 7105; 38 C.F.R. § 3.156. 2. Entitlement to service connection for headaches Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, or to a service-connected disability. VA treatment records show that the Veteran has a current disability of headaches. In this regard, the Board observes the VA outpatient treatment reports reflect a notation of tension headaches in February 2012, headache pain in August 2013 and the Veteran reported very mild headache pain in November 2013. However, service treatment records are negative for any complaints or treatment for headaches. At a May 1984 separation examination, the Veteran specifically denied experiencing frequent or severe headaches. The Veteran has also not made any allegations that any incident in service directly caused his subsequent development of headaches, nor has he submitted any competent evidence relating headaches to service. The evidence does not show, nor does the Veteran contend, that he had headaches within one year of discharge from service or that he experienced headaches continuously since discharge from service. Indeed, the first report of headaches is in February 2012, which is many years after his discharge from service. Therefore, the Board finds that service connection is not warranted on a direct or presumptive basis. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim for service connection for headaches that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Therefore, the Veteran’s claim for service connection for headaches is denied. REASONS FOR REMAND 1. Entitlement to service connection for depression, anxiety, panic attacks and insomnia is remanded. In a May 2014 statement, the Veteran reported that he had several incidents in service, including a motor vehicle accident and an assault on a military police officer, which may relate to his current psychiatric disabilities. Therefore, upon remand, an attempt to locate the Veteran’s service personnel records (SPRs) and associate them with the claims file should be made. Following the addition of any relevant service records, an adequate VA examination and medical opinion is required to facilitate appellate review in order to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disability, to include depression, anxiety, panic attacks or insomnia, originated during active service, within one year of his active service or was otherwise caused by or related to active service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); see Waters v. Shinseki, 601 F.3d 1274, 1276 (2010); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The matters are REMANDED for the following action: 1. Attempt to obtain legible copies of the Veteran’s service personnel records (SPRs). If copies cannot be provided, please include documentation of this fact. 2. Upon receipt of all additional records, the Veteran should be afforded a VA examination(s) to determine the current nature and etiology of his psychiatric disability. The examination report is to contain a notation that the examiner reviewed the claims file. Please review the Veteran’s reported history carefully, including the history of incidents in service, including a motor vehicle accident and assaulting a military police officer. Please NOTE: the Veteran is competent to attest to any lay observable symptoms and events as well as past treatment. The examiner is asked to answer the following: (a). Please specify the current diagnosis(es) of any psychiatric disabilities, including depression, anxiety, panic attacks and insomnia. (b). The examiner is then asked to furnish an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed psychiatric disabilities: (1) had their onset during the Veteran’s period of active service from September 1978 to August 1984; (2) if a psychosis manifested within one year of his separation from active service or, (3) that such disabilities were caused by any incident or event that occurred during such period, including his reports of motor vehicle accident and assaulting a military police officer. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saira Spicknall, 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.