Citation Nr: 21006523 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 19-22 575 DATE: February 4, 2021 ORDER Entitlement to service connection for generalized anxiety disorder is denied. REMANDED Entitlement to service connection for bilateral flat feet is remanded. FINDING OF FACT The Veteran does not have an anxiety disorder separate and distinct from his service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for entitlement to service connection for an anxiety disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.303, 4.130. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 2008 to March 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran also initiated an appeal for service connection for rashes on body (dermatitis), a right hip condition and a left hip condition. These were granted in a July 2019 rating decision which represents a full grant of benefits in regard to those issues and therefore are no longer before the Board. The Board remanded the case in October 2020 for additional development on the issues of bilateral flat feet and generalized anxiety disorder. The RO issued a supplemental statement of case in October 2020 and the case was returned to the Board for adjudication. 1. Entitlement to service connection for generalized anxiety disorder The Veteran contends that his generalized anxiety disorder is due to active service. The Veteran is currently service connected for posttraumatic stress disorder (PTSD) with initial insomnia, however, it is possible to separately grant service connection for both anxiety and PTSD. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran filed his claim for generalized anxiety disorder (anxiety) on October 20, 2015. At the time of the March 2016 rating decision, the Veteran did not have a current diagnosis of generalized anxiety disorder. The Veteran’s service treatment records (STRs) are silent for any diagnosis or treatment for anxiety during service. See June 2012 STRs. The Veteran first reported symptoms of anxiety during a September 2014 routine medical examination but was not given a formal diagnosis of anxiety. See December 2015 VA Treatment Records. He reported anxiety, depression, panic attacks and fear of leaving his home without a concealed weapon in an August 2016 statement, and was diagnosed with anxiety and major depression in August 2016. See August 2016 Veteran’s Statement, July 2017 VA Medical Treatment Records. The Veteran’s treatment records also include reports of anxiety symptoms attributed to combat, PTSD, and secondary to the Veteran’s work environment. See August 2017 Private Medical Treatment Records, October 2018 VA Medical Treatment Records. The Veteran underwent VA examinations throughout the pendency of the appeal in order to determine the nature, etiology, and severity of his psychiatric disorders. A November 2018 examiner confirmed the Veteran had a current diagnosis of PTSD but stated that he did not have any additional mental health disorders. See November 2018 VA Examination. Further, the examiner opined the symptoms of Veteran’s PTSD included anxiety, depressed mood, sleep disturbances, suspiciousness, panic attacks and suicidal ideation. Id. The examiner also indicated that the Veteran’s PTSD caused him difficulty in adapting to stressful circumstance and difficulty in maintain effective work and social relationships. The RO granted service connection for PTSD with a rating of 70 percent, effective September 16, 2015, based on the Veteran’s symptoms attributed to his condition, including his anxiety. The Board remanded the case in October 2020 for an addendum medical opinion to determine if the Veteran’s anxiety was separate and distinct from his service-connected PTSD. In a October 2020 VA examination, after a review of the record, and noting the previous examinations, the examiner opined that the Veteran did not have a separate diagnosis of generalized anxiety disorder because he did not have sufficient symptoms to qualify for a separate diagnosis outside of the symptoms to qualify for PTSD. Further, the medical records were supportive of a diagnosis of PTSD due to combat as the triggers and manifestations of his symptoms were related to his combat experiences. Id. Based on the foregoing, the Board finds that the Veteran does not have a current diagnosis of generalized anxiety disorder that is separate and distinct from his PTSD, and consequently service connection is not warranted. See Shedden, 381 F.3d at 1166-67. The November 2018 examiner indicated the Veteran’s only current mental disorder is PTSD and included anxiety as a symptom of the condition. The October 2020 VA examiner considered all the evidence of record and concluded the Veteran’s anxiety is not separate and distinct from his PTSD. Both VA medical opinions are highly probative as the examiners provided a complete rationale in support of their respective medical opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no medical opinion to the contrary, and the Board’s review of the record does not reveal any inaccurate factual premises on which the examiner’s opinions rely. Although the Veteran is competent to report experiencing anxiety, and the record supports the presence of anxiety, he is not competent to diagnose a disability based on such symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). Thus, while the Veteran is competent to report symptoms he experienced first-hand, he is not competent to relate such symptoms to a specific psychiatric diagnosis. Lastly, as the Veteran’s symptoms of anxiety are already considered under his current disability rating for PTSD, and that rating has an effective date prior to the date the Veteran filed his claim for anxiety, there is no prejudice to him in the current decision. Therefore, the Board finds that service connection for generalized anxiety disorder separate from his PTSD is not warranted. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim of entitlement to service connection for generalized anxiety disorder must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral flat feet is remanded. The Veteran claims his flat feet were incurred during his active duty service. During the November 2018 VA examination, the examiner confirmed the diagnosis of flat feet noted during Veteran’s entrance exam in April 2008. He opined that it is less likely than not (less than 50 percent probability) that the Veteran’s flat feet began during his service or are otherwise related to his service, reasoning that because he was asymptomatic at entrance and there’s only one mention of foot pain in August 2011, that his flat feet were not symptomatic during service. Id. The examiner noted the Veteran had pain with prolonged walking and weight bearing and also checked the box indicating other complications of flat feet but failed to provide additional details regarding any complications. Id. The Board found the November 2018 VA examination to be inadequate, as the examiner based his opinion on the lack of supporting medical treatment records, and remanded the case for an addendum medical opinion. In the October 2020 remand, the Board requested an addendum medical opinion regarding whether the Veteran’s condition was a congenital defect or disease, whether there was evidence of a superimposed injury or disease and/or whether the condition was aggravated by active service. The remand directives directed the examiner to consider the Veteran’s statements regarding observable symptomatology including the onset in-service and the continuity of symptomatology the Veteran experienced after service. The opinion obtained states that the pes planus is both a congenital defect that is static in nature and, separately, a congenital disease that was not aggravated during service according to medical record review. The examiner also failed to consider the Veteran’s statements as directed. Because of the ambiguity and failure to consider the Veteran’s statements, the medical examination does not substantially comply with the October 2020 remand directives and the Board finds the opinion inadequate. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions). Therefore, an addendum medical opinion is warranted before the claim can be adjudicated on its merits. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate medical professional regarding the Veteran’s congenital defect of bilateral flat feet. The claims file should be made available for review, and the examination report should reflect that such review occurred. Following the review of the record, the examiner should respond to the following: a. Is the Veteran’s bilateral flatfoot considered to be a congenital defect (more or less static in nature) or congenital disease (capable of improving or deteriorating) for VA purposes? (The examiner is advised that for the purposes of VA compensation, a “congenital defect or abnormality is defined as a condition that is more or less stationary in nature, whereas a “congenital disease” is defined as a condition capable of improving or deteriorating.) b. If the flat foot is a congenital defect, is it at least as likely or not (a 50 percent probability or greater) that there was a superimposed disease or injury in-service that resulted in an additional disability of the feet? c. If the flat foot is a congenital disease, is it clear and unmistakable that the Veteran’s bilateral flat foot was not aggravated in service? Please determine whether it is clear and unmistakable that there was no increase during service, or that it is clear and unmistakable that any increase in disability was due to the natural progression of the pre-existing condition. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s opinion must include a discussion regarding the Veteran’s statements concerning the in-service onset of the claimed condition and the continuity of symptomatology he has experienced since service. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not address the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed should be provided as the Board is precluded from making medical findings. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board, including citation to any supporting medical treatises. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Aubee, 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.