Citation Nr: 20054474 Decision Date: 08/17/20 Archive Date: 08/17/20 DOCKET NO. 13-32 248 DATE: August 17, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as anxiety disorder, is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s current anxiety disorder is related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, diagnosed as anxiety have been met. 38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1985 to June 1990, August 1996 to January 1999, and February 2003 to April 2004, to include service in Southwest Asia. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2016, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record on appeal. In September 2016 and September 2018, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. 1. Acquired Psychiatric Disorder In this case, the evidence of record demonstrates that the current requirement for a current disability has been met. Specifically, an October 2013 VA examination report shows a diagnosis of anxiety disorder. Thus, the first element of service connection for obstructive sleep apnea has been met. With respect to the question of service incurrence, service treatment records (STRs) do not include any complaints or treatment for an acquired psychiatric disorder. In her June 2016 testimony before the Board, the Veteran asserted that she experienced multiple stressors while serving in a combat zone during active duty. She stated that the place they were at in Fallujah was bombed nightly, and there was no sleeping over there. She slept in her clothes all the time and made sure she had her black vest and helmet to put on and run in the hall quickly. The Veteran indicated that she was the only female in the engineering company, and that alone was a stressor, with the lack of respect from both the local and the people they had contracted with. The Veteran noted stressors of having her husband injured during a mission, as well as, being in the command center and listening to everyone scream on the radio, included her friend, during another mission, when they were hit by an IED. The Veteran’s service DD Form-214 reflect that she served as a construction engineering supervisor with the 890th Engineer Combat Battalion in Southwest Asia from April 2003 thru March 2004. When a veteran has not received a medal indicative of combat, the Board must determine on a case by case basis whether he participated in combat with the enemy. VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an almost unlimited variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). Receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). The above evidence including the service in Southwest Asia, military occupation specialty, and lay statements, reflects that the Veteran engaged in combat. The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use satisfactory lay or other evidence to establish that there was a disease or injury in service, even in cases where there is no official record that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)). The Board therefore accepts the Veteran's statements that she had psychiatric symptoms in service. Moreover, the fact that the Veteran has established that she had psychiatric symptoms in service due to her combat does not prevent her from also invoking the section 1154(b) rules in order to show that she incurred the subsequently diagnosed psychiatric disability itself while in service. Reeves, 682 F.3d at 999. The Veteran was afforded a VA medical examination in October 2013, at which time the examiner determined that the Veteran did not meet the diagnostic criteria for PTSD. The examiner concluded that the Veteran met the criteria for anxiety disorder, not otherwise specified (NOS). The examiner rendered a negative nexus but failed to provide a rationale to support his conclusion. In its September 2016 remand, the Board directed the AOJ to obtain an addendum opinion as to whether the Veteran’s acquired psychiatric disorder, to include PTSD, had its onset in service or is otherwise the result of a disease or injury in service, to include the Veteran’s confirmed service in Southwest Asia. In March 2017, the RO obtained an addendum opinion. The examiner opined that the Veteran’s acquired psychiatric disorder, to include PTSD was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner concluded that the October 2013 VA opinion included objective testing, which was thorough, complete, and accurate. The examiner noted that given some of the unusual statements the Veteran made in her hearing testimony, combined with the valid objective testing from her previous VA examination, although the Veteran believes she has PTSD, she simply did not meet the criteria. The examiner further noted that that there was insufficient evidence to support the claim that the Veteran’s anxiety disorder is related to her military service. In its December 2018 remand, the Board found the March 2017 VA opinion inadequate and directed the AOJ to obtain another VA opinion specifically addressing the Veteran’s competent and credible lay statements of her in-service history and symptoms, and the medical evidence of record. In July 2019 VA medical opinion, the VA examiner who also authored the March 2017 VA opinion stated that there was not a current diagnosis of posttraumatic stress disorder (PTSD). The examiner indicated that’s she considered the Veteran’s lay statements; however, it was not recommended to take a Veteran’s lay statements at face value in the context of evidence to the contrary during a disability claim. The examiner noted that it remains the prerogative of the VA to service connect Veterans based solely on lay statements, but a VA examiner must ethically find objective data and evidence to support valid diagnoses. In an October 2019 VA addendum opinion, the VA examiner indicated that she completed the opinion in July 2019, and the opinion has not changed. The Board finds that the July 2019 and October 2019 VA opinions are inadequate and is of no probative value. The examiner failed to provide an opinion with supporting rationale, as to whether any diagnosed psychiatric disorder other than PTSD had its onset during service or is otherwise related to service, as directed in the Remand. Additionally, the examiner failed to consider the Veteran’s combat service and lay statements, to include her assertion of acquired psychiatric disorder symptoms in and since service. By basing her opinion largely on the lack of documentation in the service records, the examiner placed precisely the burden on the Veteran that the combat rules were designed to alleviate. See Reeves, 682 F.3d at 998 (citing H. R. Rep. No. 1157, at 3 (1941) (noting that Congress enacted the predecessor statute to section 1154(b) because of its concern that combat veterans faced “major obstacle[s]” when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service, that in many instances, medical records do not survive combat conditions, and that due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries). At this point, a request for another medical opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c) (The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination). Given the application of 38 U.S.C. § 1154 (b) as explained in Reeves, the Veteran's lay statements along with the other evidence above provides a sufficient basis to conclude that her acquired psychiatric disorder is related to her military service. There is no other probative evidence of record which attributes the Veteran's current anxiety disorder to any other cause. Based on the evidence of record, and resolving reasonable doubt in her favor, the Board finds that the Veteran currently has an anxiety disorder that was incurred during her active military service. Thus, service connection for an acquired psychiatric disorder diagnosed as anxiety disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that the issue on appeal has previously been characterized as entitlement to service connection for a psychiatric disability, including PTSD. However, given that there is no indication that there are psychiatric symptoms clearly attributable to a psychiatric disorder other than anxiety disorder, for which service connection is being granted, further discussion of PTSD or any other psychiatric disorder is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities); see also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (considering the possibility that bipolar disorder and PTSD did not constitute the same disability, but rejecting this argument based on the facts of that case). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.