Citation Nr: 20037583 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 18-23 400 DATE: June 2, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include panic disorder, is granted. REMANDED Entitlement to service connection for coronary artery disease, to include as secondary to service-connected panic disorder, is remanded. FINDING OF FACT The competent and probative evidence of record is in relative equipoise as to whether the Veteran has an acquired psychiatric disorder that had its onset during service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for an acquired psychiatric disorder, to include panic disorder, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1975 to May 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March and May 2015 rating determinations of the Department of Veterans Affairs (VA), Regional Office (RO), in Huntington, West Virginia. In March 2020, the Veteran testified at a video conference hearing over which the undersigned presided. A transcript of that hearing is of record. The Veteran’s claim, in pertinent part, had included separate issues of service connection for depression, posttraumatic stress disorder (PTSD), and alcohol issues. The Board has recharacterized the issue as one encompassing a psychiatric disorder, to include depression, PTSD, alcohol issues, and panic disorder to better reflect the evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claim for benefits based on PTSD encompassed benefits based on other psychiatric disabilities). 1. Entitlement to service connection for a psychiatric disorder, to include depression, PTSD, alcohol issues, and panic disorder. The Veteran contends that he has a psychiatric disorder, manifested by depression, PTSD, alcohol issues, and panic disorder as a result of his period of active service. During the April 2020 Board hearing, he explained that he first experienced nervousness, anxiety, and panic attacks; and manifested related chest pain during active service. He added that he has been experiencing related symptoms ever since. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to prevail on the issue of service connection for a disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection for certain chronic diseases, such as certain psychoses, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The Veteran is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003. When no pre-existing condition is noted upon examination for entry into service, a Veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. Mere history provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition. 38 C.F.R. § 3.304 (b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Therefore, to rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a Veteran’s disability existed prior to service, and (2) that the pre-existing disability was not aggravated during service. Id.; see also VAOPGCPREC 3-2003. The second prong may be rebutted with clear and unmistakable evidence establishing that either (1) the disability underwent no increase in severity during service, or (2) any increase in severity was due to the natural progression of the condition. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). By “clear and unmistakable evidence” is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a Veteran has been “examined, accepted, and enrolled for service,” and where that examination revealed no “defects, infirmities, or disorders.” 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245-6 (1994) (the presumption of sound condition “attaches only where there has been an induction examination in which the later-complained-of disability was not detected” (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred, unless the stressor is related to a Veteran’s fear of hostile military or terrorist activity. 38 C.F.R. § 3.304 (f). A review of the Veteran’s service treatment records reveals that his December 1974 enlistment reports of medical history and examination do not show any reference to a pre-existing psychiatric disorder. During service, he was treated for reported chest pain in September 1975, March 1979, and April 1979. The Veteran reported feeling pressure on his heart. The assessments were chest pain of questionable etiology and costochondritis. In May 1976, the Veteran was seen on three occasions for reported nervousness, hot flashes, and tachycardia. The assessments were questionable and probable psychogenic complaints. In August and September 1977, the Veteran was seen in the Mental Health Unit of the base hospital for family issues. In November 1978, the Veteran was treated for multiple contusions following an incident in which he was pulled from his car and beaten by an unknown assailant. The Veteran January 1979 separation reports of medical history and examination do not show any diagnoses for a psychiatric disorder. Following service, private outpatient treatment records from T. Thistlethwaite, M.D, dated from June 2006 to December 2019 show intermittent treatment for symptoms associated with panic disorder, major depressive disorder, intermittent explosive disorder, and chronic PTSD. A VA examination report dated in March 2015 shows that the Veteran was diagnosed with adjustment disorder with depressed mood. The Veteran reported a history of aggressive behavior in adolescence and military service. He added that while in service, he completion of a 30-day drug and alcohol treatment program. He denied other mental health treatment prior, during, or immediately following service. He also indicated that in 1993, he engaged psychiatric treatment for anger and irritability. Later, he attempted group therapy but reported that it did not help. He described current symptoms of anger, depression, and anxiety. The examiner opined that the claimed condition was less likely than not incurred in or caused by the active service. The examiner explained that it was less likely than not that the Veteran’s adjustment disorder with depressed mood was directly related to his military service. There was no indication that depression had onset during military service, and he reported that he was not treated for mental health concerns until 13 years post discharge. The examiner indicated that it was more likely current mental health was related to his recent retirement, and the events surrounding the retirement. There was indication anger and behavioral disturbance were present prior to military service; these were most likely a reflection of longstanding personality patterns and not related to military service. A mental status examination report from J. Atkinson, Jr., M.A., dated in July 2016, shows that the Veteran was diagnosed with major depressive disorder with severe psychotic features to include chronic anger state disorder and panic disorder without agoraphobia; and paranoid personality trait disturbance within the context of a constitutional obsessive compulsive predisposition. The examiner opined that all of this was pre-existing condition that was greatly exacerbated and aggravated by military service and, therefore, his current mental health problems are at least as likely as not to have been present during military service. The examiner further referenced the VA examiner that had attributed the disability to the Veteran’s being fired from his job – a statement that was considered to be ludicrous, although that was one final manifestation, a pattern of behavior which was present during service and thereafter. A Mental Disorders Disability Benefits Questionnaire completed by A. Hedges, Psy.D., dated in March 2020, shows that the Veteran was diagnosed with panic disorder, major depressive disorder, and intermittent explosive disorder. The Veteran was said to have more than one mental diagnosis, but that it was not possible to differentiate what symptoms were attributable to each diagnosis as there were overlapping and interrelated symptoms. Dr. Hedges explained that the Veteran had sought help numerous times for chest pain, dizziness, and other symptoms of a panic attack while on active duty. The service treatment records were said to have noted that he had been nervous, and symptoms were psychogenic psychological cause rather than physical). After discharge, the symptoms were later diagnosed as panic disorder. He had been in service in the 1970’s when his panic attacks began, and they were not recognized in the 1970’s as a psychiatric condition. It was not until the 1980’s that the American Psychiatric Association ‘s Diagnostic and Statistical Manual of Mental Disorders (3rd Ed.) (DSM-III) established the overall concept and diagnostic criteria for panic disorder. Hence, it was more likely than not that the panic disorder was incurred in or caused by the symptoms noted in the service treatment records. Dr. Hedges further indicated that there was no information to suggest the depressive disorder or the intermittent explosive disorder had their onset in service. However, due to the overlap between the three disorders, attribution of symptoms was not possible. In the present case, the Veteran’s entrance examination is silent as to the manifestation of a psychiatric disorder at service entrance. Therefore, it cannot be concluded that there was evidence of a pre-existing condition noted at service entrance. As such, the presumption of soundness at service entry attaches. Nonetheless, the March 2015 VA examiner concluded that anger and behavioral disturbance were present prior to military service, and that these were most likely a reflection of longstanding personality patterns not related to service. Additionally, the July 2016 medical record from J. Atkinson, Jr., M.A., concludes that the major depressive disorder with severe psychotic features to include chronic anger state disorder and panic disorder without agoraphobia, and paranoid personality trait disturbance within the context of a constitutional obsessive compulsive predisposition all pre-existed active service. Thus, there is clear and unmistakable evidence that a psychiatric disorder existed prior to the Veteran’s period of active service. The next prong of the Wagner test, however, is to show by clear and unmistakable evidence that the disability was not aggravated during service. In this case, the Board finds that the condition increased in severity during service. Specifically, the service treatment records show that the Veteran had sought help numerous times for nervousness, chest pain, dizziness, and other symptoms of a panic attack while on active duty. Additionally, the July 2016 medical record from J. Atkinson, Jr., M.A., concludes that the pre-existing condition was greatly exacerbated and aggravated by military service. There is no competent medical or lay evidence to suggest that the Veteran’s pre-existing psychiatric disorder did not increase in severity during his period of active service. The burden to show no aggravation of a pre-existing disease or disability during service is an onerous one that lies with the government. See Cotant, 17 Vet. App. at 131; Kinnaman, 4 Vet. App. at 27. As such, the Board concludes that the evidence, in fact, does not clearly and unmistakably demonstrate that the pre-existing psychiatric disorder was not aggravated by service. Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). As indicated above, the Veteran has been variously diagnosed with adjustment disorder with depressed mood; major depressive disorder with severe psychotic features; paranoid personality trait disturbance; panic disorder; PTSD; and intermittent explosive disorder. As such, the evidence of record has established the existence of a current disability. Thus, the question becomes whether the current disability is related to active service. While the March 2015 VA examiner opined that it was more likely that the Veteran’s current mental health was related to his recent retirement, this opinion was specifically contradicted by the July 2016 medical record from J. Atkinson, Jr., M.A., that found the symptoms were exacerbated by service. Moreover, the Board finds probative the opinion of Dr. Hedges that concluded it was more likely than not that the panic disorder was incurred in or caused by the symptoms noted in the service treatment records. Dr. Hedges explained that the condition had not been recognized as a psychiatric disorder at that time, but that the symptoms exhibited did constitute a diagnosis of panic disorder, and that the Veteran had been experiencing such symptoms ever since. Dr. Hedges further explained that it was not possible to differentiate what symptoms were attributable to each diagnosis as there were overlapping and interrelated symptoms. This opinion is considered probative as it was definitive, based upon a complete review of the Veteran's entire history, and supported by detailed rationale. There is no competent medical evidence of record to rebut this opinion in support of the Veteran’s claim or otherwise diminish its probative weight. The Board also finds the testimony of the Veteran to be credible and entitled to probative weight, as it is internally consistent and consistent with other evidence of record, that shows he had related symptoms during active service, and that he currently has substantially identical symptoms. The record shows evidence of a panic disorder in service, and well documented current panic disorder. Dr. Hedges provided a probative opinion linking the current panic disorder to active service. The Veteran has testified as to a continuity of symptomatology since service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current panic disorder is related to active service, thus, service connection is warranted. The Board notes that while the outpatient treatment records from Dr. Thistlethwaite, in part, show intermittent treatment for symptoms associated with PTSD, service connection for PTSD requires a link between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred, unless the stressor is related to a fear of hostile military or terrorist activity. In this regard, the evidence of record has not shown any link of the assessed PTSD to active service, nor has specific stressor been alleged by the Veteran that could be verified. As such, service connection for PTSD is not warranted. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a panic disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for coronary artery disease, to include as secondary to service-connected panic disorder. The Veteran has asserted that he has manifested coronary artery disease as a result of his period of active service, to specifically include as secondary to his service-connected psychiatric disorder. As indicated above, service treatment records reveal that the Veteran was treated for reported chest pain in September 1975, March 1979, and April 1979. The Veteran reported feeling pressure on his heart. The assessments were chest pain of questionable etiology and costochondritis. In May 1976, he was seen on three occasions for reported nervousness, hot flashes, and tachycardia. The assessments were questionable and probable psychogenic complaints. The mental health records cited above from Dr. Hedges suggest that the in-service reported symptoms were manifestations of his now-service-connected panic disorder. Post-service VA and private outpatient treatment records confirm that the Veteran currently has a diagnosis of coronary artery disease. A March 2015 VA examination report concluded that the current coronary artery disease was less likely than not proximately due to or the result of the Veteran’s claimed anxiety or depression. The examiner opined that the medical literature did not support a medical relationship and a nexus had not been established. A March 2018 VA examination report explained that the Veteran had been a heavy smoker over the years, and this was the reason for his coronary artery disease and ischemic heart disease. The examiner added that the Veteran had previously claimed coronary artery disease secondary to depression which was denied as the conditions were not related. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). While the VA examination reports suggest that the current coronary artery disease was not caused by the Veteran’s psychiatric disorder, an opinion has not been provided as to whether the now-service-connected panic disorder aggravates the coronary artery disease. As such, an additional medical opinion must be provided. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Allen, 7 Vet. App. at 439. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine whether the Veteran’s service-connected psychiatric disorder aggravates his diagnosed coronary artery disease. The examiner is directed to answer all of the following questions as definitively as possible: (a) Is it at least as likely as not that the Veteran's diagnosed coronary artery disease was caused (in whole or in part) by a service-connected disability, to specifically include the service-connected psychiatric disorder, including any medications taken for such disorder? In doing so, the examiner is requested to opine whether the service-connected panic disorder is causally related to his heavy smoking that was suggested to have been responsible for his coronary artery disease. (b) Is it at least as likely as not that the Veteran's diagnosed coronary artery disease is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability, to specifically include the service-connected panic disorder, including any medications taken for such disorder? If the Veteran's current coronary artery disease is aggravated by a service-connected disability, the examiner should also indicate, to the extent possible, the level of such aggravation by identifying the baseline level of disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for coronary artery disease in the Veteran's service treatment records cannot be the sole basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Orfanoudis, 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.