Citation Nr: 21066162 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-18 945 DATE: October 28, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for an anxiety disorder other than posttraumatic stress disorder (PTSD), claimed as depression, is reopened. New and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened. New and material evidence having been received, the claim of entitlement to service connection for lumbar spine disability, to include low back strain and degenerative disc disease, is reopened. Entitlement to service connection for PTSD is denied. Entitlement to service connection for generalized anxiety disorder is granted. Entitlement to service connection for disruptive mood dysregulation disorder is granted. REMANDED Entitlement to service connection for lumbar spine disability is remanded. FINDINGS OF FACT 1. In a November 2007 rating decision, a Department of Veterans Affairs (VA) regional office (RO) denied a claim of entitlement to service connection for an anxiety disorder other than PTSD, also claimed as depression, on the basis that there was medical nexus evidence. The Veteran filed a timely notice of disagreement, and the RO issued a statement of the case in January 2009. The Veteran did not file a timely substantive appeal. 2. A November 2020 statement from a private psychiatrist indicating that the current psychiatric difficulties are at least as likely as not related to the Veteran's military service in Vietnam when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an anxiety disorder other than PTSD. 3. In a February 2013 rating decision, a RO reopened a claim of entitlement to service connection for PTSD and denied the claim on the merits on the basis that there was no current disability. The Veteran was notified of that decision but did not appeal that decision. 4. The November 2020 statement from a private psychiatrist indicating that the Veteran had difficulties with anxiety symptoms when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for PTSD. 5. In the February 2013 rating decision, a RO reopened a claim of entitlement to service connection for low back strain and denied the claim of entitlement to service connection for a lumbar spine disability, to include low back strain and degenerative disc disease, on the merits on the basis that there was no medical nexus evidence. The Veteran was notified of that decision but did not appeal that decision. 6. A November 2016 statement from a private doctor indicating that the in-service back injury could be the originator of his back symptoms when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for a lumbar spine disability. 7. The weight of the evidence is against a finding that the Veteran currently has or has had PTSD since he filed his claim in October 2015. 8. The evidence is in equipoise as to whether the Veteran's generalized anxiety disorder and disruptive mood dysregulation disorder are related to the Veteran's service in the Republic of Vietnam. CONCLUSIONS OF LAW 1. The November 2007 rating decision, which denied the Veteran's claim of entitlement to service connection for an anxiety disorder other than PTSD, also claimed as depression, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 19.20 (2021). 2. The evidence received since the November 2007 rating decision is new and material, and the claim of entitlement to service connection for an anxiety disorder other than PTSD, also claimed as depression, is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). 3. The February 2013 rating decision, which reopened and denied the Veteran's claim of entitlement to service connection for PTSD, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 19.20. 4. The evidence received since the February 2013 rating decision is new and material, and the claim of entitlement to service connection for PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The February 2013 rating decision, which reopened a claim of entitlement to service connection for low back strain and denied the claim of entitlement to service connection for a lumbar spine disability, to include low back strain and degenerative disc disease, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 19.20. 6. The evidence received since the February 2013 rating decision is new and material, and the claim of entitlement to service connection for a lumbar spine disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2021). 8. Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for generalized anxiety disorder have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 9. Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for disruptive mood dysregulation disorder have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1966 to July 1968, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decisions of a VA RO. In July 2021, the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the electronic claims file. In the March 2016 rating decision, a RO reopened all three claims and denied them on the merits. The Board must consider whether new and material evidence has been submitted to reopen claims of entitlement to service connection for an anxiety disorder other than PTSD, also claimed as depression; PTSD; and a lumbar spine disability, to include low back strain and degenerative disc disease. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). The Board has a responsibility to consider whether it was proper for a claim to be reopened; and there is no harm to a veteran's ability to present the case when the Board addresses the issue of whether a claim should be reopened rather than addressing the reopened claim on the merits. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As noted in the findings of facts and conclusions of law, the Board is reopening the claims of entitlement to service connection for an anxiety disorder other than PTSD, also claimed as depression; PTSD; and a lumbar spine disability, to include low back strain and degenerative disc disease. In addition to diagnoses of PTSD and generalized anxiety disorder, the medical evidence shows a diagnosis of disruptive mood dysregulation disorder. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the claims on appeal includes all psychiatric disorders. VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his counsel has raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Given that the RO has adjudicated the claims of service connection for PTSD and an anxiety disorder other than PTSD on a de novo basis, and given that the Veteran received notice on how to substantiate his claims on the merits, the Board finds that the Veteran is not prejudiced by the Board's consideration of these claims on the merits. Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection 1. Entitlement to service connection for PTSD 2. Entitlement to service connection for an anxiety disorder other than PTSD 3. Entitlement to service connection for a depressive disorder Governing law and regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). To establish service connection for a claimed disorder, there must be (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a stressor claimed by an appellant is related to that claimant's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the appellant's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the claimant's service, the appellant's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). Analysis PTSD As for Hickson element (1), current disability, the Veteran filed his claim to reopen entitlement to service connection for PTSD in October 2015. There is conflicting medical evidence on whether the Veteran has PTSD or has had PTSD since he filed his claim in October 2015. On the one hand, private treatment records reveal that in October 2011 the assessment was anxiety with probable PTSD. In February 2016, the assessment was anxiety. These assessments were made by the Veteran's primary care physician. In a November 2016 statement, that same doctor noted that the Veteran has a diagnosis of PTSD for which he is being followed by a psychiatrist. On the other hand, a January 2013 VA PTSD examination report reveals no diagnosis of PTSD. The January 2013 VA examiner noted that the Veteran's symptoms do not meet the diagnostic criteria for PTSD under the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (DSM-IV). As for criterion A, the January 2013 VA examiner noted that the Veteran was not exposed to a traumatic event. The January 2013 VA examiner reported that the Veteran is not reporting a stressor related to a fear of hostile military or terrorist activity. The examiner stated the Veteran appeared to be most distressing about the impact of the war on the people of Vietnam, particularly the children. The Veteran reported feeling guilty about the way he treated the people of Vietnam. The examiner stated that the Veteran's experience is distressing, the experience does not meet the DSM-IV stressor criterion for a PTSD stressor. With regard to criterion B, the January 2013 VA examiner stated that traumatic event is not persistently reexperienced. As for criterion C, the VA examiner indicated that there was no persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness. Regarding criterion D, the Veteran had two symptoms of increased arousal that were not present before the trauma. VA treatment records do not reflect a diagnosis of PTSD. Instead, VA treatment records reflect a diagnosis of generalized anxiety disorder during the period from September 2015 to January 2016. In the November 2020 statement, the Veteran's private psychiatrist noted that the Veteran has long-standing difficulties with mixed anxiety and depressive symptoms. Treatment records from that psychiatrist show that in August 2016 the impression was disruptive mood dysregulation disorder. Though the Veteran's primary care physician diagnosed probable PTSD in October 2011 and noted in the November 2016 statement that the Veteran had PTSD, the Board places greater weight on the treatment records from the private psychiatrist that do not show a diagnosis of PTSD. Similarly, the Board places considerable weight on the January 2013 VA examination report because the exam was conducted by a clinical psychologist and on the VA treatment records because the evaluations were done by social workers. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Though the January 2013 VA examination was done prior to the date of claim, the report contains a thorough analysis of whether the Veteran's symptomatology meets the specific criteria for a diagnosis of PTSD. In other words, the Board places great weight on the evaluations done by experts in psychology and psychiatry before and after the filing of the claim. As to the Veteran's assertion that he has PTSD, the Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the existence of PTSD falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In short, for the reasons and bases set forth above, the Board concludes that the most probative and persuasive evidence weighs against finding that the Veteran currently has or has had PTSD since he filed his claim in October 2015. Therefore, the preponderance of the evidence is against the claim, and it is denied. Other psychiatric disorder Regarding current disability, the January 2013 VA examiner diagnosed generalized anxiety disorder. The VA examiner noted that the Veteran reported intermittent symptoms of depression, which is common in individuals with an anxiety disorder. The examiner stated that anxiety appears to be his primary problem and that he does not presently meet the criteria for a depressive disorder. The examiner noted that the Veteran reported experiencing few panic attacks that appeared to be situationally bound for example, when he was retiring and buying a house. The examiner stated that the Veteran did not met the criteria for panic disorder. VA treatment records reflect a diagnosis of generalized anxiety disorder in November 2015 and January 2016. Treatment records from the Veteran's private psychiatrist show that in August 2016 the impression was disruptive mood dysregulation disorder. Therefore, the weight of evidence shows that the Veteran has generalized anxiety disorder and disruptive mood dysregulation disorder. Hickson element (1), current disability, is satisfied. As for Hickson element (2), in-service injury or disease, the Veteran served in the Republic of Vietnam. The January 2013 VA examiner reported that the Veteran is not reporting a stressor related to a fear of hostile military or terrorist activity. The examiner noted that the Veteran reported that he heard bullets flying by him on one occasion and that on another occasion he had to take cover under a truck during a mortar attack. The examiner, however, stated the Veteran appeared to most distressing about the impact of the war on the people of Vietnam, particularly the children. The Veteran reported feeling guilty about the way he treated the people of Vietnam. The examiner stated that the Veteran's experience is distressing, the experience does not meet the DSM-IV stressor criterion for a PTSD stressor. The Veteran is competent to report his experience in Vietnam, and the Board finds him credible. Thus, Hickson element (2) is met even though the in-service event is not sufficient to be a PTSD stressor. Regarding Hickson element (3), medical nexus, in the November 2020 statement, the private psychiatrist opined that the Veteran's long-standing difficulties with mixed anxiety and depressive symptoms are at least as likely as not related to the Veteran's military service in Vietnam. Though the psychiatrist did not identify the symptoms as being part of specific psychiatric disorders, this statement is medical evidence essentially relating the generalized anxiety disorder and disruptive mood dysregulation disorder to active service. There is no medical evidence specifically indicating the generalized anxiety disorder and disruptive mood dysregulation disorder are not related to active service. The evidence is in equipoise as to whether the Veteran's generalized anxiety disorder and disruptive mood dysregulation disorder are related to the Veteran's service in the Republic of Vietnam. In summary, the Board is of the opinion that the Veteran has met all requirements needed to establish service connection for generalized anxiety disorder and disruptive mood dysregulation disorder. The benefits sought on appeal are accordingly allowed. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS FOR REMAND In a June 2006 statement, the Veteran reported that he was on disability for his back, neck, arm, and hypertension. The RO should ask the Veteran whether he has ever applied for Social Security disability benefits and, if he did, attempt to obtain the records regarding his claim. The Veteran last submitted treatment records from the ACIPOC Medical Group in February 2016. At the July 2021 hearing, the Veteran testified that he has had three back surgeries, to include one at the University of Alabama at Birmingham Hospital and one at Brookwood Hospital. Hearing transcript, page 13-14. He also testified that he has been seeing a rheumatologist since 1989. Id. at 14. Private treatment records reflect that his rheumatologist has been Dr. McLain. The RO should obtain records from these private providers. The matter is REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his lumbar spine disability, to include all facilities where he had back surgery, and obtain any identified records. Ask the Veteran to complete a VA Form 21-4142 for the ACIPOC Medical Group, the University of Alabama Birmingham Hospital, Brookwood Hospital, and Dr. McLain. Make two requests for the authorized records from the ACIPOC Medical Group, the University of Alabama Birmingham Hospital, Brookwood Hospital, and Dr. McLain, unless it is clear after the first request that a second request would be futile. 2. Ask the Veteran whether he has ever applied for Social Security disability benefits. If he has applied for such benefits, obtain the Veteran's federal records from the Social Security Administration pertaining to his claim for disability benefits. Document all requests for information as well as all responses in the claims file. 3. After the development in 1 and 2 is completed, the RO should undertake any necessary development on the claim for service connection for lumbar spine disability as warranted by any additional evidence of record. 4. Thereafter, the RO must readjudicate the issue on appeal. If the benefit is not granted, the Veteran must be furnished with a supplemental statement of the case, with a copy to his counsel, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.