Citation Nr: 21022072 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 10-45 033 DATE: April 14, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDING OF FACT An acquired psychiatric disorder, to include unspecified anxiety disorder, did not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include unspecified anxiety disorder, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to May 1969, with additional service in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2010, the Veteran testified at a hearing before a Decision Review Officer. A transcript of the hearing has been associated with the Veteran’s claims file. In July 2017, April 2019, and January 2021, the Board remanded the Veteran’s claim for additional development. The development requested upon remand has been completed, as an adequate VA opinion has been obtained regarding the Veteran’s claim of service connection for an acquired psychiatric disorder. Additionally, in an October 2019 letter, the Agency of Original jurisdiction (AOJ) requested that the Veteran complete and return the enclosed VA Form 21-4142,authorization to Disclose Information and VA Form 21-4142a, General Release for Medical Provider Information, to allow VA to obtain any outstanding private treatment records. The Veteran did not respond. VA is only required to seek pertinent records that are adequately identified and for which necessary releases are furnished. 38 U.S.C. § 5103A(b); see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street); 38 C.F.R. §§ 3.159(c)(1)(i), (c)(2)(i) (requiring a claimant to cooperate fully with VA’s efforts to obtain federal and non-federal records). Thus, VA has no further duty to attempt to obtain any additional treatment records. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall, 11 Vet. App. at 268. Service Connection The Veteran contends is in-service symptoms of hyperventilation and difficulty breathing are related to his anxiety disorder. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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 question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of unspecified anxiety disorder, and evidence shows that he sought treatment for hyperventilation and difficulty breathing in service, the preponderance of the evidence weighs against finding that the Veteran’s condition began during service or is otherwise related to an in-service injury, event, or disease. The Veteran sought treatment in November 1968 for hyperventilation and difficulty breathing. No other psychiatric findings were noted in his records, and no psychiatric diagnosis was ever made. The Veteran was employed as a police officer after service and records indicate that he was found to have had an anxiety reaction in 1978 and was recommended for release from the police force due to that condition. VA and private treatment records show the Veteran first sought mental health care for marital problems in 2007, and then again in May 2017, at which time he was noted to have adjustment disorder with mixed anxiety and depressed mood. The Veteran testified before the DRO in December 2010 that he had breathing issues while on active duty and that he was taken to the hospital; however, the doctors there could find no physical problem. He testified that the doctor told him it could be due to his emotional stress. The Veteran was not given any medication and no diagnosis was made. The Veteran’s private provider opined in June 2009 that the Veteran presented with anxiety problems, including episodes of nervousness, pervasive anxiety, and worry. The provider noted these episodes included shortness of breath and hyperventilation, and that they were related to his active service because they began then. The examiner concluded that the Veteran should be evaluated carefully because it was more probable than not that he was presenting with a chronic anxiety disorder caused by his service. This opinion is, however, less probative than the VA examiner’s opinion. There is no indication that the examiner reviewed pertinent medical evidence in the claims file, and further, there was no clear diagnosis provided. Instead, the opinion appears to be based on the Veteran’s self-reported medical history, which is inconsistent with VA treatment records. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Veteran first underwent VA examination in December 2017. The examiner indicated the Veteran had no mental disorder. However, VA treatment records indicate various times where the Veteran had sought treatment for mental health, including in May 2017, when the Veteran was noted to have adjustment disorder with mixed anxiety and depressed mood related to a spousal separation. Further, the Veteran indicated that he was treated by a private psychiatrist in March 2018 who diagnosed the Veteran with panic disorder or anxiety. As the Veteran identified relevant private treatment records, the Board remanded the matter in April 2019. The Veteran was afforded a VA examination in December 2019. The examiner noted that the Veteran was diagnosed with unspecified anxiety disorder. The examiner opined that the Veteran’s condition was less likely than not incurred in or caused by an in-service injury, event, or illness because the Veteran’s service treatment records were silent for any mental complaint, diagnosis, or treatment. The examiner went on to note that the Veteran’s stressor was his family situation, not military service. However, the examiner’s opinion was based on an inaccurate factual premise in that the record contained evidence of mental health treatment prior to 2017, which the examiner did not address; as such, the Board again remanded the matter. Reonal, 5 Vet. App. at 461. The Veteran was again provided a VA examination in February 2021. The examiner opined that the Veteran’s condition was less likely than not due to, related to, incurred in, or in any way associated with military service. The examiner noted that there were no psychiatric complaints in service, and while the Veteran was treated for shortness of breath in 1968, his service treatment records were silent for any further related complaint, diagnosis, or treatment. Further, his separation examination was negative for any psychiatric complaint, and no psychiatric complaint or treatment was identified within one year of his discharge. As such, the examiner found that his shortness of breath was an acute, transient symptom that resulted in no residual disability, and that a single symptom does not conform to a mental disorder. The examiner addressed the Veteran’s 1978 treatment for an anxiety reaction, noting it was related to police department functions, rather than his military service; further, the Veteran was prescribed no psychiatric medications and was able to return to work as an officer. The examiner found no other medical evidence, or any related formal psychiatric treatment related to that incident. The February 2021VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). (Continued on the next page)   To the extent the Veteran believes his unspecified anxiety disorder is related to an in-service injury, event, or disease, the Veteran is not competent to provide a nexus opinion regarding this issue. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the February 2021 VA examiner’s opinion. Because the Veteran’s psychiatric disorder is not shown to have been incurred during or due to his active service, this claim for service connection must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Ashley Castillo Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Geer, 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.