Citation Nr: 22006291 Decision Date: 02/03/22 Archive Date: 02/03/22 DOCKET NO. 14-33 197 DATE: February 3, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include panic disorder with agoraphobia and depressive disorder, is granted. REMANDED Entitlement to service connection for bilateral foot disorder is remanded. FINDING OF FACT The Veteran's psychiatric disorder is attributable to her military service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include panic disorder with agoraphobia and depressive disorder have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from November 2003 to July 2004. These issues come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The issue of entitlement to service connection for panic disorder with agoraphobia and depressive disorder has been recharacterized as entitlement to service connection for an acquired psychiatric disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). These claims were remanded in August 2018 for additional development. A review of the record shows substantial compliance with the Board's prior remand; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to a total disability rating based on individual unemployability (TDIU) was raised by the Veteran's private examiner in her February 2020 medical opinion. However, this issue has not been adjudicated by the Agency of Original Jurisdiction. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for additional development. In September 2012, VA made a formal finding of the unavailability of some of the Veteran's service treatment records (STRs). Under the circumstances, VA has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Russo v. Brown, 9 Vet. App. 46 (1996). No presumption arises from missing records. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). 1. Entitlement to service connection for an acquired psychiatric disorder, to include panic disorder with agoraphobia and depressive disorder. The Veteran contends that her psychiatric disorder is due to her military service. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions recorded in examination reports are to be considered as noted. 38 U.S.C. § 1132; 38 C.F.R. § 3.304 (b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and after service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b), Falzone v Brown, 8 Vet. App. 398, 402 (1995). To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The clear and unmistakable evidence standard requires that the result be undebatable. Cotant v. West, 17 Vet. App. 116, 131 (2003). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Board finds that the Veteran has a current psychiatric disorder. The report of a February 2020 private medical examination included diagnoses of major depressive disorder, generalized anxiety disorder, panic disorder, agoraphobia, and alcohol use disorder in full sustained remission. However, there is a question as to whether the Veteran's psychiatric disorder preexisted her military service. As stated above, the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). A review of the evidence of record shows that the Veteran complained of psychiatric symptoms (including anxiety, depression, and passive suicidal ideation) prior to entering military service. However, the Veteran's April 2003 entrance examination is absent of any notations of defects, infirmities, or disorders. Additionally, the evidence is at least in equipoise as to whether her psychiatric disorder manifested during service. The Veteran has submitted lay statements describing how she underwent harassment from her superiors and peers in-service because she complained to her congressional representative about her in-service medical treatment. She also testified that she underwent mental health treatment in-service, where she was diagnosed with anxiety disorder and panic disorder and prescribed Paxil for treatment. The Board found the Veteran truthful and credible at her hearing and her testimony is afforded probative value. In addition, the Veteran submitted an affidavit from a fellow servicemember, who described how she accompanied the Veteran to her in-service mental health appointments and witnessed her experiencing increased stress and anxiety while in service. Therefore, with respect to her psychiatric disorder, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v Shinski, 22 Vet. App. 390, 396 (2009). A review of the evidence of record shows that while the Veteran reported undergoing mental health treatment prior to service, she was not diagnosed with a mental disorder at the time of entry. In addition, the Veteran has testified that she did not have a mental disorder at the time of her entrance into service. Furthermore, the Veteran has submitted an affidavit from her mother, detailing that the Veteran underwent psychiatric counseling prior to service for adjustment issues, but that she was not given a mental disorder diagnosis. The Board finds that the most competent and credible evidence of record illustrates that the Veteran's psychiatric disorder did not clearly and unmistakably preexist service. Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). As stated above, the Board finds that the Veteran has a current psychiatric disorder and there is evidence of in-service manifestations of her psychiatric disorder. The remaining issue for the Board to adjudicate is whether there is a causal connection between her psychiatric disorder and her military service. The Board finds that a preponderance of the evidence to be in favor of the Veteran. Therefore, her claim of entitlement to service connection is granted. A review of the Veteran's STRs note no mental health complaints; however, the Board notes that the STRs are incomplete and are missing pertinent treatment records. In addition, no separation examination was found in the claims file. Also, the Board found that the evidence is at least in equipoise as to whether her psychiatric disorder manifested during service. A review of the Veteran's post service VA treatment records note multiple mental health complaints and treatment; however none of her treating physicians have given a positive opinion that her psychiatric disorder is the result of her military service. The Veteran underwent a VA psychiatric examination in April 2013. The examiner diagnosed panic disorder with agoraphobia and depressive disorder. The examiner noted the Veteran abusing alcohol in-service and receiving psychotropic medication, but denied any mental health counseling until 2011. The examiner then gave a negative opinion that the Veteran's psychiatric disorder was the result of her service-connected fibromyalgia. The examiner noted that the Veteran appeared to be exaggerating her symptomology based on the lack of diagnostic procedures verifying fibromyalgia. In addition, the examiner found that the Veteran's psychiatric disorder was related to her multiple medical conditions; however, no rationale was given for this opinion. Furthermore, the examiner failed to render an opinion as to whether the Veteran's psychiatric disorder manifested during military service. A second VA examination was conducted in May 2019. The examiner diagnosed generalized anxiety disorder with panic attacks and major depressive disorder secondary to chronic medical conditions, including fibromyalgia/chronic pain. The examiner also noted the Veteran's pre-service psychiatric issues, such as anxiety, depression, "teenage angst," and fleeting suicidal ideation due to family conflicts. The Veteran also reported mental health treatment in 2001 for panic/anxiety issues, where she was prescribed Paxil for treatment. The examiner then gave a negative opinion that the psychiatric disorder was the result of military service. The examiner found that the evidence of record showed pre-military treatment for panic/anxiety/agoraphobia; therefore, there was no nexus between military service and onset of the Veteran's current symptoms. The examiner also found that the Veteran's pre-existing mental health condition was not permanently worsened beyond its natural progression due to her chronic medical conditions, including her service-connected fibromyalgia. The examiner noted that the Veteran's psychiatric condition waxed and waned depending on life stressors and the status of her chronic medical issues and that her level of social occupational impairment due to her psychiatric disorder was significantly high prior to entering service; therefore, there was no evidence that her psychiatric disorder was aggravated by her service-connected disabilities. The Board notes that the examiner failed to render an opinion as to whether the Veteran's pre-existing psychiatric disorder was aggravated by her military service apart from her service-connected disabilities. The Veteran submitted a February 2020 private medical opinion. The private examiner diagnosed major depressive disorder, generalized anxiety disorder, panic disorder, and agoraphobia under DSM-5 criteria. The examiner then undertook an interview with the Veteran and noted her history of harassment and retribution from her supervisors and peers that resulted from her contacting her congressional representative to discuss her in-service medical treatment. The examiner also noted her symptomology of anxiety, passive suicidal ideation, constricted affect, depressed mood, diminished interest, sleep disturbances, psychomotor agitation or retardation, fatigue or loss of energy, among other symptoms. The examiner noted that these symptoms began in prodromal form during the Veteran's military service and remained severe and persistent to the present date. The examiner also reviewed the Veteran's claims file and noted statements from the Veteran's mother and fellow servicemember that reported the Veteran began to experience anxiety and increased stress during service, with the Veteran seeming lost and has not been the same since she returned from service. The examiner then found that based on a review of the aforementioned evidence, the Veteran had major depressive disorder, generalized anxiety disorder, panic disorder, and agoraphobia that more likely than not began in service and continued uninterrupted through the present date. In addition, the examiner found that the Veteran's service-connected fibromyalgia worsened her psychiatric symptoms beyond the course of their natural progression, noting that patients with chronic pain syndromes often experience an exacerbation of preexisting psychiatric symptoms (assuming the Veteran has preexisting psychiatric symptoms). The Board finds the February 2020 private opinion to be competent, credible, and probative. The examiner provided detailed rationale that took into consideration the Veteran's lay statements and history, a clinical examination, and the evidence of record, and provided a clear explanation that contains a clear conclusion and supporting data. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the Board finds no adequate basis to reject the competent medical opinion based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Furthermore, this private opinion is the only probative evidence that addresses the issue of medical nexus. The May 2013 VA examination is not entitled to any probative value, as the examiner failed to render an opinion on direct service connection. In addition, the May 2019 VA examination failed to address whether the Veteran's psychiatric disorder was aggravated by her military service, apart from her service-connected disabilities. Furthermore, the examiner failed to render an opinion as to whether the psychiatric disorder was the result of military service, as the Board has found that there the disorder did not clearly and unmistakably preexisted service. To the extent that the Veteran has been diagnosed with a psychiatric disorder, the Board finds that the weight of the competent and credible evidence establishes that her psychiatric disorder is due to her military service, thereby warranting service connection. Accordingly, the claim of entitlement to service connection for an acquired psychiatric disorder is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral foot disorder is remanded. The Veteran contends that her bilateral foot disorder is the result of her military service. A review of the STRs reveal complaints of left foot pain in January 2004; however, there were no subsequent complaints or treatment found. The Veteran's separation examination is unavailable for the Board to review. Post-service VA treatment records document the presence of bilateral foot pain and diagnoses of pes planus and bilateral foot sesamoiditis. In addition, the Veteran reported chronic foot pain brought about from in-service marching; however, none of her treating physicians have given a positive opinion that her bilateral foot disorder is the result of her military service. The Veteran underwent a VA examination in April 2013. The examiner diagnosed bilateral pes planus. In addition, the examiner noted the Veteran's in-service onset of symptoms beginning in December 2003, which began as pain in both feet and cramping in the arches of both feet and progressed to pain in both heels/achilles tendons. The examiner also noted that the Veteran's contention that her bilateral foot issues contributed or caused her service-connected right ankle disability. The examiner then gave a negative opinion that the bilateral foot disorder was the result of military service. The examiner found that there was no current diagnosis for a left foot condition. The examiner also noted that the current physical examination and radiology report were negative for left foot pathology. No other rationale was provided. A second VA examination was conducted in May 2019. The examiner noted the Veteran's claimed pes planus; however, the examiner found no evidence of pes planus on examination. The examiner also noted the Veteran's onset of in-service bilateral foot pain related to heavy weight bearing exercises. Clinical examination revealed bilateral pain on weight bearing and disturbance of locomotion. The examiner then gave a negative opinion that the Veteran had a current bilateral foot disorder. The examiner noted that the Veteran did not have a diagnosis or treatment bilateral pes planus. In addition, the examiner noted diagnostic testing of the Veteran's feet, which were found to be normal. Furthermore, the examiner found that there was no evidence of a current chronic foot condition that arose during service or within one year of discharge. The Board notes that the examiners documented the presence of foot pain which might be productive of some functional impairment. A decision from the U.S. Court of Appeals for Veterans Claims (Court) held that in certain circumstances, pain may be considered a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Court determined that pain may be considered a disability where there is also functional impairment. The Board finds that the evidence that the Veteran reportedly has chronic pain and that this pain has possibly contributed to functional impairment of her feet is sufficient enough to warrant a disability for VA purposes. A determination must be made as to whether the pain found on examination was linked to her active duty service. In addition, the evidence of record demonstrates that the Veteran was service connected for fibromyalgia and right knee strain during the pendency of this appeal. In general, the Board has a duty to discuss all theories of entitlement reasonably raised by the record. Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008). The Board must also consider all reasonably raised theories even if not specifically raised by the claimant. Douglas v. Derwinski, 2 Vet. App. 435 (1992). In the context of a service connection claim, theories of entitlement such as direct service connection, secondary service connection and presumptive service connection are deemed as part of the appeal regardless of when the issue has been raised in the record. Bingham v. Principi, 18 Vet. App. 470 (2004), aff'd 421 F.3d 1346 (Fed. Cir. 2005). Based on a review of the record, the Board finds that a secondary service connection theory for the Veteran's bilateral foot disorder based on her service-connected disabilities has been raised. However, no opinions have been rendered as to whether the Veteran's bilateral foot disorder was caused or aggravated by his service connected disabilities. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are inadequate based on the examiners' failure to render opinions on direct and secondary service connection. As such, the Board remands this matter for the issuance of an addendum VA medical opinion. The matter is REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. After the above has been completed to the extent possible, obtain an addendum VA medical opinion regarding the Veteran's bilateral foot disorder from a medical professional with appropriate experience. The claims file should be made available to the examiner and the examiner should make a notation that the claims file has been reviewed. If the examiner cannot render an opinion without conducting an examination, then the Veteran should be scheduled for an examination. After a review of the evidence of record, and a new examination if needed, the examiner must render the following opinions: (a.) Whether it is at likely as not (a 50 percent or greater probability) that the Veteran's bilateral foot disorder is the result of military service? The examiner is to assume that the Veteran has a current bilateral foot disorder based on her chronic pain complaints. (b.) If the answer to (a.) is negative, whether it is at least as likely as not that the Veteran's bilateral foot disorder was caused or aggravated by her service-connected disabilities, including, but not limited to the following: fibromyalgia and right ankle sprain? The examiner to render an opinion on both causation and aggravation. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. "Aggravation" means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. (Continued on the next page) In rendering this opinion, the examiner is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.