Citation Nr: 21022358 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-41 650 DATE: April 15, 2021 ORDER Entitlement to service connection for panic disorder and generalized anxiety disorder (GAD) is granted. Entitlement to service connection for an acquired psychiatric disability other than panic disorder and GAD is denied. FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran’s panic disorder and GAD are causally related to his active service. 2. The preponderance of the evidence indicates that the Veteran’s depressive disorder is not causally related to his active service. 3. The preponderance of the evidence indicates that the Veteran does not have a diagnosis of PTSD that conforms to the Diagnostic and Statistical Manual of Mental Disorders, fifth edition, (DSM-V) criteria. CONCLUSIONS OF LAW 1. The criteria for service connection for a panic disorder and GAD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disability other than a panic disorder and GAD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1988 to October 1991 with additional service in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issue for further development in August 2018. The claim has been returned to the Board for appellate review. The Board notes that actions requested in the prior remand have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board acknowledges that the Veteran originally claimed that his psychiatric disability manifested as PTSD. The Board has recharacterized the issue as entitlement to service connection for an acquired psychiatric disability to consider all diagnoses under which may reflect the Veteran’s symptoms. As the decision below grants service connection for two of the Veteran’s diagnosed psychiatric disabilities, the Board has split the issues into separate grants and denials. See Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) (finding that a veteran’s claim “cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed.”) Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for panic disorder and GAD is granted. The Veteran contends that he has a psychiatric disability that is causally related to his traumatic experiences during service. The Board concludes that during the period on appeal, the Veteran had a diagnosed disability that is causally related to his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An April 2013 private examination indicated that the Veteran had current diagnoses of PTSD, GAD, major depressive disorder (MDD), and panic disorder. Thus, the question becomes whether the disability is related to service. On this question there are probative opinions in favor of and against the claim. The Board will address the diagnoses of PTSD and MDD in Section 2, below. The evidence in favor of the claim includes an opinion from the April 2013 private examiner. He noted the Veteran’s military history, including his service in Saudi Arabia and Iraq during the Gulf War. He reported experiencing his first panic attack upon his return from the Gulf War. He had another panic attack in September 2011. The Veteran reported nightmares and flashbacks as well as difficulty dealing with stress. The examiner noted that the Veteran’s present difficulties area attributed directly to his deployment to Iraq and Saudi Arabia serving in the Gulf War. The examiner opined that the Veteran’s psychological disorders appear clearly related to his years spent in the Army. In December 2019 and May 2020, the VA examiner noted that the Veteran’s panic disorder and GAD may have resolved, but he did not address whether the disorders were causally related to the Veteran’s service. Although the Veteran may not have had a current diagnosis of GAD and panic disorder at the time of the VA examination in 2019, the Veteran did have a diagnosis during the period on appeal. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s panic disorder and GAD are causally related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for panic disorder and GAD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for an acquired psychiatric disability other than panic disorder and GAD is denied. The Veteran contends that he has an acquired psychiatric disability other than panic disorder and GAD that is causally related to his traumatic experiences during service. 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 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 notes that the Veteran does not have a diagnosis of PTSD that conforms to the DSM-V. The Board acknowledges that a private examiner in April 2013 noted a diagnosis of PTSD, along with GAD and MDD. The examiner did not address the criteria set forth in the DSM. The Veteran was afforded two VA examinations to address whether the Veteran met the criteria for PTSD as noted in the DSM-V. The July 2014 VA examiner specifically noted that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under DSM-V. Alternatively, the examiner diagnosed depression. The December 2019 VA examiner also noted that the Veteran did not meet the DSM-V diagnostic criteria for PTSD. The examiner did note a diagnosis of other specified depressive disorder. In May 2020, the examiner repeated that at the time of the December 2019 VA examination, the Veteran’s only mental health diagnosis was other specified depressive disorder. The Board notes that the VA examiners considered the specific requirements set forth in the DSM-V when determining that the Veteran did not have a diagnosis of PTSD. As such, the Board finds that the examiner did not have a diagnosis of PTSD at any time during the period on appeal. Without evidence of a current disability, service connection may not be granted. The Court has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); See also McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board must then consider whether the Veteran’s diagnosed depression is causally related to his active service. The Veteran’s service treatment records showed no complaints or treatment for depression. Post-service, a March 1997 report of medical examination showed a clinically normal psychiatric examination. On the corresponding report of medical history, the Veteran specifically noted no depression or excessive worry. The July 2014 VA examiner reviewed the Veteran’s claims file and determined that the Veteran’s current distress appeared to be related to a host of psychosocial stressors such as perceived discrimination in the workplace, hostile work environment, financial concerns, physical illness, marital problems, and home-schooling children, which have resulted in a significant depression. The December 2019 VA examiner noted that the Veteran’s current symptoms of depression appeared to be related to post-military life stressors. In a May 2020 opinion, the examiner noted that the Veteran denied any history of mental health services or treatment until 2013. The Veteran’s diagnosis of other specified depressive disorder is less likely as not related to an in-service injury, event, or disease or commenced in service. The Veteran’s service treatment records are negative for any mental health symptoms or treatment. The Veteran’s current symptoms of depression appears related to post-military life stressors. Based on the information available, the Veteran’s distress appeared to be related to a host of psychosocial stressors such as perceived discrimination in the workplace and hostile work environment. It is the opinion of this examiner that the Veteran’s only current mental health diagnosis is other specified depressive disorder which fails to have any nexus to his military career and appears related to post-military life stressors. The Board acknowledges the April 2013 private nexus opinion. The examiner reviewed the Veteran’s military history, including his deployment to Saudi Arabia and Iraq, serving in the Gulf War for five months. The examiner noted a panic attack upon return from the Gulf War, but did not note any symptoms of depression at that time. The Veteran noted current feelings of depression. The examiner generally noted that the Veteran’s present difficulties are attributed directly to his deployment to Iraq and Saudi Arabia serving in the Gulf War and that the Veteran’s psychological disorders appear clearly related to his years spent in the Army. Taken together, the several VA opinions of record establish that the Veteran’s depression is not at least as likely as not related to an in-service injury, event, or disease, including his reported stressors. The Board finds the July 2014, December 2019, and May 2020 opinions to be more probative regarding the onset and causation of the Veteran’s depression. The April 2013 private examiner did not provide a rationale specific to the Veteran’s depression. The examiner noted symptoms of a panic disorder after returning from the Gulf War, but failed to specifically relate depression to service. The April 2013 examiner also included current stressors including work stresses and racism at his job. The VA examiners’ opinions are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes he has PTSD or depression that is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of psychiatric diagnostic criteria. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Veteran has competently described his symptoms and has been granted service connection for a panic disorder and GAD based upon those symptoms. Consequently, the Board gives more probative weight to the VA examiners as noted above. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for an acquired psychiatric disability other than panic disorder or GAD. As the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disability other than panic disorder or GAD, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patricia Veresink, 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.