Citation Nr: 21065145 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 15-05 490 DATE: October 25, 2021 ORDER Service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), to specifically include anxiety, is denied. FINDING OF FACT A medical nexus has not been established between an in-service incurrence and a current diagnosis has not been established, and the Veteran did not manifest psychoses within one year of separation from service or continuity of symptomology since separation from service; and the Veteran did not have an acquired psychiatric disorder that was proximately due to or aggravated by a previously service-connected disability. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, other than PTSD, to specifically include anxiety have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from May 1985 to September 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. The Veteran indicated that he did not desire a personal hearing before the Board. This matter was previously before the Board, and, in June 2018, the Board remanded this matter for further development. After additional development in substantial compliance with the Board's previous remand instructions, the Board denied the Veteran's claim in June 2020. In April 2021, the Court of Appeals for Veterans Claims (Court) vacated the Board's June 2020 disposition and remanded the matter back to the Board for further consideration. In August 2021, the Board remanded the matter for further development. Further development in substantial compliance with the Court's and the Board's previous remand instructions have been completed. Service connection for an acquired psychiatric disorder, other than PTSD, to specifically include anxiety, is denied. At issue is whether the Veteran is entitled to service connection for an acquired psychiatric disorder. The weight of the evidence indicates that the Veteran is not entitled to service connection. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Furthermore, service connection can be established through application of statutory presumption, including for chronic diseases like psychosis, when manifested to a compensable degree within a year of separation from service; or there is continuity of symptomology since separation. 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted on a secondary basis for diseases that are proximately due to or aggravated by a previously service-connected disability. 38 C.F.R. § 3.310. A review of the evidence revealed that the Veteran's service treatment records (STR's) were silent for a diagnosis of or treatment for an acquired psychiatric disorder. In an August 1991 report of medical separation examination, and all systems were normal, except for identifying body marks. The Veteran denied ever suffering from depression or excessive worry. See November 2013 STR-Medical, p.24;26. In a May 2003 VA treatment record, the Veteran indicated that he had never needed to seek psychiatric treatment for mental illness, and he denied having drug or alcohol abuse. However, the Veteran did report that his mother had suffered from anxiety and paranoia. Furthermore, the Veteran reported that he had no problem sleeping and had no issues with his appetite; but had low energy. In addition, the Veteran reported that his job was stressful. See December 2004 Medical treatment record-government facility, p.61. In a September 2004 VA treatment record, a clinician indicated that the Veteran had experienced an increase in anxiety over the past two-year period. The Veteran reported high stress at work but not enough to increase anxiety. See December 2004 Medical Treatment Record-Government Facility, p.8. In a December 2004 VA treatment record, a clinician noted that the Veteran had been diagnosed with anxiety in May 2003, as well as with joint pain-ankle in May 2002. See December 2004 Medical Treatment Record-Government Facility, p.9. In a January 2010 VA treatment note, a clinician indicated that 5 years prior, the Veteran started complaining of anxiety. See June 2019 Capri, 246. During October 2013 VA treatment, the Veteran endorsed that he had anxiety symptoms dating back to his military service. The clinician noted that the Veteran's symptoms were increasing in intensity. The Veteran indicated that he was frustrated with his medical issues and medical providers not being able to diagnose his problems. See June 2019 Capri, p.90. In a November 2013 mental health physician note, the Veteran reported having anxiety for up to 25 years. The Veteran stated that his anxiety had gotten worse over the last 5 to 10 years. The Veteran mentioned he only slept for 4-6 hours a night. The Veteran stated that he feared his family getting into a car wreck and had to distract himself or use techniques to make the images go away. In addition, the Veteran indicated that he was worried that he was becoming like his mother; who became obsessive and paranoid regarding storms as she got older. The clinician noted that while the Veteran was in-service, he witnessed a motor vehicle accident; and some of the symptoms the Veteran was experiencing could have been tied to his excessive anxiety. See Capri, p.78. In a December 2013 statement in support of claim, the Veteran stated that while he was in-service a sergeant was driving his car while it was raining; he pulled under an overpass and another vehicle slammed into the rear of the vehicle. As a result, the sergeant was caught in between two vehicles and lost both of his legs. In addition, the Veteran stated while stationed in Germany while prepping equipment to send to the Persian Gulf, he saw a woman who had a wire go through her eyeball and it was protruding out. See December 2013 VA 21-0781, Statement in Support of Claim for PTSD. In June 2014, the Veteran submitted a statement in support of claim. The Veteran reported that in 1990 he visited a behavioral specialist for situational stress. The Veteran stated that while in-service he saw a fellow soldier/ friend get hit by a car while trying to roll up a back window, and the soldier lost both of his legs. As a result, the Veteran stated that he had been receiving treatment since 2004 or 2005 but since he had been having anxiety attacks and worried about car accidents, his wife had to drive him to his treatment sessions. See June 2014 Power of Attorney (Incl. VA 21-22, VA22a), p.12. In a July 2014 mental health physician note, the Veteran reported that he was only taking his anxiety medication 1-2 times a week. The Veteran stated that he took his medication when he had negative thoughts that bothered him. The Veteran indicated that his thoughts usually center around disturbing topics like car wrecks and other fears he cannot control. However, the Veteran stated he was able to work 30 hours of overtime every two weeks at work. The Veteran had plans to return to school and his sleep had been good, and his moods were stable. The clinician indicated the Veteran was cooperative and pleasant and was goal directed and logical. Also, the clinician noted that the Veteran had normal behavior and no psychosis. Also, the clinician gave the assessment that the Veteran had a diagnosis of unspecified anxiety disorder. See June 2019 Capri, p.56;57. In a February 2015 mental health physician note, the Veteran reported that one week prior a high school boy in his town had committed suicide, which made him worry about his son who was bullied. The Veteran reported that the incident increased his anxiety level. See June 2019 Capri, p.245. In a February 2019 mental health note, the Veteran had diagnoses of post-traumatic stress disorder, depression and anxiety but the focus of his treatment was for PTSD. The clinician performed a PHQ-9 screening and the Veteran scored a 12, which met he was moderately depressed. The Veteran denied suicidal or homicidal ideations. The Veteran reported having difficulties sleeping but he believed it was due to starting a new diet program. See June 2019 Capri, p.76-77. In an April 2019 mental health note, the Veteran's PHQ-9 score for depression was a 1 for minimal depression. See June 2019 Capri, p.57. In October 2019, the Veteran was afforded a mental disorders VA examination (other than for PTSD and eating disorders). The examiner noted that the Veteran had a diagnosis for generalized anxiety disorder with depressed features. The Veteran denied having mental illness prior to service and denied a family history of mental illness. The Veteran stated that he developed anxiety and depression while in service, he sought an evaluation but was told he was stressed and needed to learn how to cope. The Veteran indicated he may have gone to counseling one time in-service but did not remember being diagnosed with depression or anxiety in-service. The Veteran stated that he had experienced numerous panic attacks over the last 20 years with the last attack being 4-5 years prior. Also, the Veteran reported bad road rage and avoiding going out since it increased his anxiety. The Veteran endorsed that he had trouble sleeping and staying asleep at night; and that he had nightmares several times a week. The Veteran described his mood as being "gloom and doom" all the time and that he thought of the worst and excessively worried. The Veteran also stated he had fears of bad things happening to his family. The Veteran also stated that he drank heavily for as long as he could remember, bit was not diagnosed with alcoholism. The examiner determined that it was less likely than not that the Veteran's mental disorder was incurred in or caused by the claimed in-service injury, event or illness. The rationale given was that there was no mental health records or evidence available that supported his claim that his mental disorder was caused by service. In a November 2019 VA treatment record, the Veteran reported having anger issues, avoiding crowded stores due to anxiety over inevitable ruminations that night regarding any conversations he had. The Veteran also reported that he had an episode of "going off" on VA staff and security was called. The Veteran further indicated that as a child he witnessed verbal abuse between his parents but denied mental health issues until he was 21 and in the military. The Veteran also reported suffering from regrets of his discussions, that he checked and rechecked doors to make sure they were locked and that had visions death in his family with day conversations triggering worse symptoms in the evening. See April 2020 Capri, p.11. In a February 2020 mental health note, the physician noted that the Veteran had a history of diagnosis of chronic PTSD, recurrent depression and anxiety. The physician noted that at the Veteran's past visit he struggled with bad thoughts and described the thoughts as almost "voices". However, at this visit the Veteran reported that his thoughts did not control him anymore and his wife even noticed the improvement. In addition, the Veteran reported a decrease in his anger, he was not drowsy during the daytime and if he woke up at night due to nightmares, he was able to go back to sleep. The Veteran also noted that he spoke with a neighbor without problems and had not been having road rage. The Veteran also reported being able to attend functions with his wife, that his mood was good, his sleeping and appetite were good, no flashbacks, but some nightmares but that they were tolerable. The physician indicated that the Veteran's motivation and energy were stable, he had no manic symptoms, no obsessions and that he denied suicide or homicidal ideations and audio/visual hallucinations. It was also noted that the Veteran had diagnosis for chronic post-traumatic stress disorder (recurrent depression), anxiety, fasciitis, gout and joint pain-ankle. See April 2020 Capri, p.4. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for acquired psychiatric disorder, to include anxiety disorder, is not warranted. While the Veteran has a current diagnosis for generalized anxiety disorder, there is no indication of a psychiatric disability inservice. The Board has considered the Veteran's lay statements; including the Veteran stating that he witnessed a traumatizing car accident while inservice. However, the accident was not mentioned in the Veteran's STR's and there are several VA treatments notes that mention life events after the Veteran leaving service that contributed to his anxiety diagnosis. Nevertheless, the Veteran observed these events and the Board finds him competent and credible. That said, as a lay person, the Veteran does not have the specialized psychological training to render a psychiatric diagnosis or etiological opinion. See Jandreau; Kahana; Routen, all supra. The Board gives high probative value to the October 2019 VA examination; where the VA examiner indicated that his mental disorder was not related to service. The Board finds of particular significance the Veteran's denial prior to separation from service of mental health symptoms such as depression, nervous trouble, and sleep problems. The Board also finds it significant that when the Veteran did start reporting problems with anxiety in the early-to mid-2000s that he did not attribute the anxiety to any incident related to service. Instead, he discussed post-service problems such as high stress levels at work. A Joint Motion for Partial Remand (JMPR) was filed and in April 2021, the Court issued an Order vacating the June2020 denial of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include an anxiety disorder. The Court returned the case to the Board for action consistent with the JMPR. The parties agreed the Board erred when it did not address whether the Veteran's current psychiatric disorder was secondary to his service-connected gastroesophageal reflux disease (GERD). The parties also agreed that the Board erred when it failed to discuss whether the October 2019 VA examination and opinion were adequate given the lack of discussion of psychiatric conditions as secondary to GERD in that examination and opinion. See April 2021 JMPR. As this theory of entitlement had not been adequately addressed by the October 2019 examiner and as there is otherwise insufficient medical evidence of record to address it, the Board remanded the case for a new examination that included discussion of the Veteran's contentions, as put forth by his attorney in April 2015: Veteran stated his GERD has caused him to pass up opportunities for advancement at work, which has had a negative impact on his confidence and has led to negative feelings of despair and depression. He also said he experiences anxiety as a result of his condition because he fears others will find out about his problem. He said he has missed full days of work and periodically misses blocks of time during the workday as a result of his GERD. He said he goes to a different floor of his office building when he feels the urge to vomit because he does not want his colleagues to find out about his condition. The Veteran underwent another VA examination in September 2021. The examiner opined that the Veteran's acquired psychiatric disorder was neither proximately due to nor aggravated by a previously service-connected disability to include GERD. Notably, the examiner indicated that while the referral information indicated the Veteran reported his anxiety is a result of his GERD and its impact on his occupational functioning (as noted in the April 2015 letter) his available records do not support this assertion and during today's evaluation the Veteran did not indicate his general anxiety disorder or obsessive compulsive disorder were in any way related to his GERD. There was no objective evidence to suggest the Veteran's general anxiety disorder or obsessive-compulsive disorder were the direct result of his service-connected GERD. Rather, his records and self-report indicated his symptoms are secondary to psychosocial stressors. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to service connection. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for an acquired psychiatric disorder is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David R. Seaton, 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.