Citation Nr: 21065247 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 15-06 292A DATE: October 25, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include anxiety is granted. FINDING OF FACT Resolving doubt in the Veteran's favor, the evidence is at least in equipoise that the Veteran's acquired psychiatric disorder had its onset during service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include anxiety have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1992 to March 1993. A January 2021 Board decision denied the Veteran's claim. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC), and in September 2021, a CAVC order granted a Joint Motion for Remand (JMR). 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety The Veteran contends his psychiatric disability had its onset in-service. He has highlighted several incidents which he believes precipitated the onset of his disability, including a parachute accident, his unit being placed on high alert for possible deployment to Somalia, and, more generally, the stress associated with being a parachute rigger. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, the evidence must show (1) the existence of a present 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 (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). A claim for a mental health disability includes any such disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran has had various diagnosed psychiatric disabilities throughout the period on appeal, including anxiety. The first Shedden element is satisfied. As for in-service incurrence, service treatment records (STRs) are essentially negative for complaints, treatment, or diagnosis of an acquired psychiatric disorder. However, the STRs show that the Veteran underwent a status examination in September 1993 after testing positive for illegal cannabis use. The examiner noted that his mood or affect was anxious, but the examination was otherwise normal. The examiner determined that there were no psychiatric illnesses and the Veteran was diagnosed with cannabis abuse. He was psychiatrically cleared for an administrative separation. Military personnel records confirmed that the Veteran's military occupational specialty (MOS) was parachute rigger. He performed this MOS for approximately six months. He was given a general discharge due to misconduct (abuse of illegal drugs). The record includes statements from friends and family member. His mother and his cousin noted changes in the Veteran since his separation including increased depression, nervousness, and anxiety. The Veteran's mother reported noticing changes in his behavior within months of his entrance into the military. Specific reference was made to symptoms of depression and anxiety. She reported the Veteran would call more often the longer he was in, and as his symptoms appeared to increase, he also expressed displeasure and increased anxiety associated with his work as a parachute rigger. One particular friend recalled being contacted while the Veteran was in service and being told about a parachute accident. That friend also reflected that he had noticed changes in Veteran, to include symptoms of anxiety and depression, following the parachute incident. In April 2003, approximately 10 years post-service, the Veteran was hospitalized for mood impairment and suicidal ideation. He presented with depression, anxious mood, and suicidal thoughts in the context of marijuana abuse. He was diagnosed with major depressive disorder, panic disorder, agoraphobia, cannabis and alcohol abuse, and rule-out bipolar disorder. He was started on prescribed medications to treat his symptoms. He then began regular treatment with a psychiatrist. In May 2003 and June 2003, the Veteran self-reported to his treating clinicians that his symptoms began in 1994. He went on to describe stressors leading to his psychiatric symptoms including unemployment, financial stress, marital problems, his parents' and grandparents' declining health, and his wife's depression and anxiety. These issues were listed as ongoing stressors for several years. The records also stated that depression runs strong in the Veteran's family with his biological mother having a history of depression and his two aunts having a history of mental illness. No reference was made to his active service at that time. In January 2006, the Veteran was diagnosed with major depressive disorder (MDD) and he reported the onset of his psychiatric symptoms in-service. In May 2012 the Veteran underwent a VA examination. The examiner diagnosed the Veteran with dysthymia and cannabis abuse manifested by depressed mood and anxiety. The examiner opined that the condition was less likely than not related to the Veteran's military service as the Veteran's service treatment records (STRs) did not note treatment for a psychiatric condition and the Veteran initially did not associate his military activities with his depression and anxiety. Problematically, the examiner did not address the lay statements indicating the Veteran's symptoms began in-service, nor did the examiner address the notation of anxious mood in-service. Such lowers the probative value of the opinion. A March 2019 VA examiner similarly noted a diagnosis of cannabis use disorder, and additionally noted a diagnosis of unspecified depressive disorder with anxious distress. He also opined that it was less likely than not that the disorder had its onset in-service or is otherwise related to the Veteran's military service. The examiner noted the Veteran was first diagnosed during his 2003 hospitalization, a decade after service. The examiner further highlighted reports the Veteran overexaggerates symptoms making it difficult to determine his diagnosis or the etiology of said diagnosis. The examiner cited the lack of evidence of a mental health disorder in-service, aside from lay statements, to support the negative nexus opinion rendered. The examiner did not address the lay statements from the Veteran and his family that his anxiety began to manifest during service. This lowers the probative value of the opinion. Dr. H.G. submitted a Disability Benefits Questionnaire (DBQ) with an associated nexus opinion in February 2016 and an addendum opinion in May 2019. Dr. H.G. diagnosed the Veteran with unspecified anxiety disorder and opined that it as likely as not had its onset in-service with continuous symptoms. In the May 2019 addendum opinion Dr. H.G. indicated the Veteran's most accurate psychiatric diagnosis from service to the present is anxiety as it is the predominant presenting symptom throughout the period. Dr. H.G. opined that the Veteran's anxiety disorder had its onset during service based on the reports of the Veteran that his anxiety onset in-service, the lay statements from people who knew him during service that his affect became increasingly anxious during service, and the notation of anxious affect on a psychological exam during the service. The Board acknowledges the negative nexus opinions rendered by the VA examiners. However, the opinions of the VA examiners heavily rely on the absence of treatment for a mental health condition during service. The May 2012 examiner did not address the lay statements from the Veteran and his friends/family about the onset of anxiety in-service. The March 2019 VA examiner did not address the lay statements of the Veteran's friends/family in rendering his opinion; nor did the examiner explain why the Veteran's cannabis use during service was not related to an anxiety disorder when the Veteran has stated he used cannabis to cope with anxiety symptoms. The parties to the JMR agreed that this apparent oversight reduced the overall probative value of the opinions. The Board is now left to consider the diminished value of the two VA opinions against the remaining evidence of record. The question of Remanding for an additional VA opinion has been contemplated. Such action is not necessary as the totality of the evidence now favors the Veteran. The Veteran reports increasingly feeling anxious during his time in the military, which was exacerbated by a parachute accident and potential deployment orders. These statements were corroborated by statements from friends and family. The Veteran's mother reported she noticed her son's increasing anxiety and that he reported his symptoms to her during service. The Veteran endorsed using cannabis as a means of coping with his increased anxiety, and that he has continued to self-medicate since his separation. This is corroborated by the Veteran's separation for cannabis use, and his post-separation DUI, as well as his self-reports to doctors and social workers. Based on this information, and a review of the Veteran's record, Dr. H.G. opined the Veteran suffered from more than cannabis abuse disorder in-service, and it is as likely as not the Veteran's anxiety disorder manifested during his service. Accordingly, entitlement to service connection for an anxiety disorder is warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.