Citation Nr: 21067255 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-35 161 DATE: November 3, 2021 ORDER Entitlement to service connection for acquired psychiatric disorder diagnosed as an 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 active service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for an acquired psychiatric disability, diagnosed as an anxiety disorder, have been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to May 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal from an September 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for an unspecified anxiety disorder, also claimed as posttraumatic stress disorder (PTSD). In March 2018, the Veteran testified at an RO hearing before a Decision Review Officer. The hearing transcript is of record. In November 2019, the Veteran testified at a Board hearing before the undersigned Veteran Law Judge. The hearing transcript is of record. Service connection for acquired psychiatric disorder diagnosed as anxiety disorder, also claimed as PTSD Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Every Veteran is presumed to have been in sound condition when examined, accepted, and enrolled into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term "noted" refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). When a condition is not noted on entry into service, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). This claim has also been developed as a PTSD claim. There are additional regulations governing PTSD claims imposing additional evidentiary requirements. 38 C.F.R. § 3.304(f). As explained below, the Veteran is not shown to have a current diagnosis for PTSD. The instant service connection award reasonably encompasses the symptoms that the Veteran has characterized as PTSD symptoms. Accordingly, further discussion of the additional PTSD regulations is not necessary. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In May 1969, the Veteran had an enlistment examination. His psychiatric condition was clinically examined and deemed normal. Contemporaneous Report of Medical History showed that the Veteran denied frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, nervous trouble, and any drug or excessive drinking habit. November 1970 service treatment records (STRs) showed that the Veteran complained about intermittent dizziness, shortness of breath, and eye twitching. Physical and neurological evaluations were within normal limits. The clinician assessed psychogenic symptoms. December 1971 STRs included reports about an hour history of nausea without vomiting. The Veteran initially attributed the symptoms to his lunch, but upon conversation admitted he had been under a lot of stress. He referred to his wife's recent psychiatric hospitalization. Physical examination did not reveal abdominal pain. The clinician assessed emotional gastrointestinal upset. May 1972 STRs showed that the Veteran had a physical examination for separation. No pertinent findings were made. A corresponding medical history report has not been located. The Veteran's DD 214 confirms that he received a hardship separation from service. July 2013 VA primary care records reported that the Veteran had complaints about diminished energy. The clinician referred to a possible depression diagnosis. The Veteran declined medication or specialist referral. March 2017 VA primary care mental health (MH) records listed a diagnosis of major depression, recurrent moderate. The Veteran complained about a poor mood and frequent arguments with his wife. He also talked about multiple prior traumas. He mentioned a military stressor that continued to bother him. It was an instance where one soldier showed his private area and another soldier placed vice grips on him. He also stated that during service he witnessed numerous situations of inappropriate touching and sexual statements. It continued to bother him even though he later worked as a police officer and had many occupational trauma exposures. He complained about intrusive thoughts from these military stressors. The clinician encouraged the Veteran to practice coping skills. June 2017 VA MH records referenced complaints about increased depression. The Veteran again reported frequently arguing with his wife. He isolated himself. He struggled with irritability and negative thoughts. Quantitative testing was administered for depressive symptoms, anxiety symptoms, and PTSD. Moderate depression and anxiety symptoms were reported. The reported symptoms were also consistent with PTSD. August 2017 VA MH records showed that the Veteran was concerned about decreased short-term memory. It had progressively worsened. The Veteran reported forgetting name of family and friends, his medication schedule, and directions while driving. However, he remained fully functional. He had some depressive symptoms. A history of military sexual trauma (MST) was noted, but the Veteran denied nightmares, flashbacks or intrusive thinking. The Veteran did not have any history for psychiatric hospitalization or outpatient psychiatric treatment. He had MH treatment through the primary care clinic. Psychosocial history was notable for sexual abuse in the military. Mental status examination was notable for a dysphoric mood. Test results were listed. The clinician assessed unspecified depressive disorder with memory deficit and MST. Psychoeducation was recommended as well as dementia testing. The main goal was to further assess the reported memory deficit. In September 2017, the Veteran had a VA PTSD examination with a psychologist. The VA psychologist diagnosed unspecified anxiety disorder. She stated that it was the only applicable MH diagnosis. She recounted the Veteran psychosocial history. The Veteran reported that he experienced physical abuse and one instance of sexual abuse during his childhood. He reported being expelled from high school and joining the military. He denied any learning disability and stated his school expulsion was for a relatively minor infraction. He earned a general education diploma (GED) in service. He then enlisted in the Navy. He requested a hardship discharge before he completed his initial service period due to his then-wife's suicide attempt. After service, he earned a bachelor's degree and had a career in law enforcement and prison security. The psychologist noted that November 1971 and December 1971 STRs referred to psychiatric symptoms. For current symptoms, the Veteran complained about intrusive thoughts relating to stressors. He indicated a military incident was the primary associated stressor. He also had dreams and irritability. He employed various coping strategies to avoid intrusive thoughts. He reported that as a law enforcement officer he had encountered numerous occupational stressors following service, but he was much more affected by the military stressor and childhood stressor. He reported three current stressors. For the first stressor, he reported a sexual abuse incident as an adolescent. For the second stressor, he reported a military stressor where he witnessed a crude sexual joke that resulted in him having a physical altercation without serious injury. For the third stressor, he witnessed a service member exposing himself as a joke and then another service member seriously injured him. The September 2017 VA psychologist furnished a negative medical opinion for PTSD. She stated that the reported psychiatric symptoms did not meet the PTSD criteria. She cited the definition of MST and concluded that the Veteran's stressors did not meet this definition since it did not involve personal assault to him. For the unspecified anxiety disorder, the psychiatrist furnished a negative medical opinion. She noted STRs indicating psychosomatic diagnoses. The Veteran did not recall these experiences when questioned, and the VA psychiatrist opined that these somatic symptoms were not related to an ongoing mental health problem. She also reported that the Veteran had MH problems prior to service. She referenced the childhood MST incident and risky adolescent behaviors. At the March 2018 RO hearing, the Veteran reported that he sought psychiatric treatment in the late 1970s and early 1980s but these private medical records were no longer available. In November 2019, the Veteran had a Board hearing. He reported that when he started basic training, he was distressed over the overtly sexual behavior he witnessed at the barracks. Although he was not physically assaulted, he was subject to sexual harassment. He had difficulty maintaining work and friend relationships due to these military experiences. He reported continuous anxiety and irritability symptoms since service. He did not have any major issues prior to service and disputed the September 2017 VA psychologist's findings about a preexisting psychiatric condition. Prior to service, he explained the circumstances about why he had to leave high school. He was targeted by his neighbor who was his school principal. His wife also recounted her observations of the Veteran. She had been married to the Veteran for almost 35 years. She observed him having difficulty sleeping and general irritability throughout their marriage. The Veteran stated that he did not talk about his mental health problems due to fears it would cause problems with work or keep him from obtaining a job. For the following reasons, service connection for an anxiety disorder is warranted. The September 2017 VA examination report confirms a current diagnosis for anxiety disorder. The disputed issue is whether this diagnosis is related to service. The Veteran is competent to report about his psychiatric symptoms and their history. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). He asserts that he developed psychiatric symptoms in service. These symptoms have continued and underlie the current anxiety disorder diagnosis. Review of the STRs include two references to in-service psychiatric symptoms. Service records also show that the Veteran received a hardship separation. Then, the reports from the September 2017 VA psychiatrist and the Veteran's wife corroborate reports about longstanding anxiety type symptoms. With this background, the Board finds that the Veteran's reports about continuous symptoms beginning in service for the current anxiety disorder are plausible and are entitled to probative weight. The September 2017 VA medical opinion weighs against the claim. The VA psychologist did not directly address the Veteran's reports about continuous symptoms beginning in service. Instead, she cited adolescent stressors as a reason to reject a military relationship. However, the presumption of soundness attaches to the Veteran's psychiatric fitness at enlistment since a psychiatric disorder was not reported on the May 1969 enlistment examination. 38 C.F.R. § 3.304(b). Clear and unmistakable evidence is required to show a preexisting psychiatric disorder. Vanerson v. West, 12 Vet. App. 254 (1999). The record does not include any report about formal psychiatric treatment prior to service. The Veteran denied having any major psychiatric problems prior to service at the November 2019 Board hearing. Thus, the September 2017 VA psychologist's preexisting disorder assessment, standing alone, is not sufficient to meet the onerous clear and unmistakable evidentiary standard for showing a preexisting disability. Id. For these reasons, the rationale for the September 2017 VA medical opinion is flawed and of limited probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). A request for another 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"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (denying petition for a writ of mandamus challenging a remand for additional development, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake . . . additional development if a purpose was to obtain evidence against an appellant's case'" (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)); Andrews v. McDonough, 34 Vet. App. 216, (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). For the reasons set forth above, the Board finds that the evidence is evenly balanced as to whether the Veteran's current anxiety disorder is related to service. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for an acquired psychiatric disorder, diagnosed as an anxiety disorder. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board notes that the benefit granted herein is service connection for an acquired psychiatric disorder diagnosed as anxiety disorder and not PTSD as claimed by the Veteran. Although the Federal Circuit "recognize[d] that bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability," Amberman, 570 F.3d 1377, 1381 (Fed. Cir. 2009), that is not the situation here with regard to the Veteran's psychiatric diagnoses. See id. (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). Rather, the evidence above does not reflect that the Veteran's psychiatric symptoms can be separated or clearly attributed to one or another of his psychiatric disorders, and they must be considered as a single psychiatric disability. See 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). (Continued on the next page) Consequently, the Board need not remand any portion of the claim in order to separately address the issue of entitlement to service connection for PTSD. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.