Citation Nr: 21001412 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 18-50 190A DATE: January 8, 2021 ORDER Entitlement to service connection for a generalized anxiety disorder is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s generalized anxiety disorder is related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection of a generalized anxiety disorder have been 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 served on active duty in the Army from November 1965 to January 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2016 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). Due to the Veteran’s age, the Board has advanced this case on the docket pursuant to 38 U.S.C. § 7107(b)(3). 38 C.F.R. § 20.900(c). The Board observes that in relation to this claim, the Veteran’s representative has submitted May and September 2020 requests for an updated copy of the claims file. As addressed below, the Board grants in full the benefit sought on appeal. Given that no adverse determination is being rendered, the Board need not discuss compliance with the duty to notify and duty to assist provisions of 38 U.S.C. §§ 5103 and 5103A. See Bernard v. Brown, 4 Vet. App. 384 (1993). Entitlement to service connection for an acquired psychiatric disorder The Veteran asserts that his acquired psychiatric disorder, diagnosed as a generalized anxiety disorder, is due to his active service. Service connection may be established for a disability resulting from an injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury incurred or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection will be granted on a direct basis when there is competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury; and competent evidence of a nexus between the in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In VA claims, a “veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Veteran’s pre-induction, entrance and separation examinations are silent for psychological symptoms or issues. His January 1971 service treatment records indicate that while stationed in Vietnam he reported to sick call seeking a psychiatry appointment, indicating he was experiencing a speech difficulty which he believed to be emotionally related to his marital problems back home. The Veteran was referred for a psychiatric evaluation due to “stuttering and anxiety.” The evaluating psychiatric clinician noted the Veteran had five years military service and was considering making a career of the same, had no criminal record or disciplinary record and had adjusted well to the service. The Veteran reported a history of stuttering which the examiner noted was well controlled, noting the Veteran’s “major concern during interview was his great desire to get home as soon as possible to salvage a marriage in difficulty.” The examiner observed that the Veteran was scheduled to depart Vietnam within a week and offered him a mild tranquilizer, which the Veteran declined. The examiner concluded that further therapy was not feasible due to the Veteran’s imminent departure and cleared him to return to duty, recording a diagnosis of “situated reaction; anxiety.” In February 2012 the Veteran reported to a VA medical center to establish care. He claimed to experience long-term memory loss, easily remembering recent events but unable to recall the distant past. The treating clinician noted no history of head trauma, but recorded a past stutter that caused intense anxiety until eliminated around age 40 and a history of heavy drinking with frequent blackouts from age 25 to 45, when the Veteran quit drinking entirely. After April 2012 cognitive testing, the clinician concluded that the Veteran’s memory loss was psychological and not organic in nature, more likely due to heavy alcohol use as opposed to anxiety. The Veteran was offered a psychological evaluation but declined until February 2014, when he was diagnosed with a generalized anxiety disorder. The diagnosing psychologist indicated that the Veteran’s rigid personality traits and history of heavy alcohol use were most likely responsible for his memory issues. The Veteran was afforded a July 2016 VA psychological examination in conjunction with his claim. The examiner recorded a diagnosis of generalized anxiety disorder not causing symptoms severe enough either to interfere with occupational and social functioning or to require continuous medication. No other psychological diagnoses were noted. The examiner observed the Veteran stuttered as a child which caused him anxiety but had no current speech difficulties. She also noted his 10 months of service in Vietnam as well as his inservice diagnosis of “situational anxiety reaction.” The examiner opined that the Veteran’s generalized anxiety disorder was less likely than not due to his active service, stating that the Veteran’s January 1971 anxiety was related to his desire to return home and salvage his marriage and noting his stuttering issue had since resolved. The Veteran underwent a September 2019 psychological examination by a private psychologist and occupational rehabilitation specialist. The private examiner confirmed a diagnosis of generalized anxiety disorder, characterized as chronic and severe, causing occupational and social impairment in most areas. She observed the Veteran exhibited no mental health issues prior to service but had no recollection of his time in Vietnam which was very frustrating to him. The examiner noted the Veteran’s January 1971 treatment for “situational reaction: anxiety” and indicated that the Veteran’s family had observed a negative personality change in him after his return from Vietnam. She found that the Veteran presented classic symptomatology related to service-connected generalized anxiety, meeting all the criteria under the DSM-5 with regard to diagnosis and manifesting no other mental disorders. The examiner concluded that the Veteran’s “current diagnosis of generalized anxiety disorder was initially diagnosed in the military, and it is my professional opinion that it has continued throughout his life to the present.” The Board observes that the Veteran manifests a current disability, a confirmed DSM-5 diagnosis of a generalized anxiety disorder. In a June 2017 notice of disagreement, the Veteran’s representative argued that the Veteran’s inservice diagnosis of anxiety qualifies as an inservice “event” for the purposes of service connection, claiming the cause of the anxiety is irrelevant. While the representative is correct that the Veteran’s symptoms and subsequent diagnosis of anxiety constitute an inservice event, a nexus between this event and his current generalized anxiety disorder is required in order to establish service connection. In this respect, the Board finds both the July 2016 VA and September 2019 private opinions to be highly probative, as they were based on an examination of the Veteran as well as a thorough review of the factual record. Thus, the Board observes what appears to be a difference of opinion by equally qualified experts. After a review of the record, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s generalized anxiety disorder is related to his active service. Therefore, by law, all reasonable doubt must be resolved in the Veteran’s favor. The Board emphasizes that this standard of proof is “unique” to the VA adjudicatory process in light of the fact that the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 55. Thus, all reasonable doubt is resolved in the Veteran’s favor and the claim of entitlement to service connection for a generalized anxiety disorder is granted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.