Citation Nr: 0728015 Decision Date: 09/07/07 Archive Date: 09/14/07 DOCKET NO. 04-36 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for panic disorder with agoraphobia. 2. Entitlement to service connection for disability manifested by dizzy spells. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Cryan, Associate Counsel INTRODUCTION The veteran served on active duty from June 1979 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The veteran requested that he be afforded a hearing when he filed his substantive appeal in September 2004. The veteran was informed in October 2005 and December 2005 that he was scheduled for a hearing at the RO in December 2005. In December 2005, the veteran withdrew the request for a hearing. 38 C.F.R. § 20.704(e) (2006). FINDINGS OF FACT 1. No objective findings relative to a psychiatric disability were recorded on any examination undertaken in connection with the veteran's entry into active service. 2. It is debatable whether the veteran's panic disorder with agoraphobia pre-existed military service and whether it underwent a chronic or permanent worsening during service beyond the natural progress of the condition. CONCLUSION OF LAW A panic disorder with agoraphobia is presumed to have been incurred in service. 38 U.S.C.A. §§ 1131, 1111, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's service medical records (SMRs) reveal that the veteran initially reported depression/excess worry on his report of medical history at the time of his entrance examination dated in September 1978. The veteran later amended the report and said he did not have depression/excess worry. The veteran was noted to have a normal psychiatric evaluation on the September 1978 entrance examination. In August 1979 the veteran was seen for complaints of nervous problems. His affect was noted to be flat and he was noted to have poor eye contact. On a September 1979 report of medical history the veteran reported depression/excess worry and nervous trouble. In July 1981, an examiner felt that certain symptoms reported by the veteran were due to an underlying anxiety. The May 1983 separation examination revealed a normal psychiatric examination. The veteran reported a suicide attempt on the report of medical history prepared in conjunction with the separation examination. Associated with the claims file is a psychiatric consultation performed by M. D'Eramo, M.D., dated in May 1999. Dr. D'Eramo diagnosed the veteran with probable dysthymia, generalized anxiety disorder, and rule out a severe major depressive episode without psychotic symptoms. Private treatment reports from J. Davis, Ph.D, of Tristar Community Counseling, Inc., dated from March 1999 to August 1999 reveal diagnoses of panic disorder with agoraphobia and dysthymic disorder. Private treatment reports from St. Rita's Medical Center dated from August 2001 to October 2001 reveal diagnoses of anxiety and depression. The veteran was afforded a VA psychiatric examination in December 2002. The examiner diagnosed the veteran with panic disorder with agoraphobia. He concluded that the veteran began experiencing anxiety prior to military service and over time the anxiety developed into a full blown panic disorder with agoraphobia. He opined that the stressful and demanding duties of military service as likely as not contributed to the exacerbation of the veteran's panic disorder. Under applicable law, service connection may be established on a "direct" basis for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2006). Generally, in order to prove service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Pond v. West, 12 Vet. App. 341, 346 (1999). Every veteran who served in the active military, naval, or air service after December 31, 1946 is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). Only those conditions recorded in examination reports can be considered as "noted," 38 C.F.R. § 3.304(b) (2006), and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. Id; § 3.304(b)(1). To rebut the presumption of sound condition for conditions not noted at entrance into service, 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), 70 Fed. Reg. 23027 (May 4, 2005). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service-the second step necessary to rebut the presumption of soundness-a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). If the presumption of sound condition is not rebutted, "the veteran's claim is one for service connection." Wagner, 370 F.3d at 1096. That is to say, no deduction will be made for the degree of disability existing at the time of the veteran's entry into service. Id; 38 C.F.R. § 3.322 (2006). In the present case, the evidence of record shows that the veteran was noted to have a normal psychiatric evaluation at the time of his enlistment examination in September 1978. He initially reported depression/excessive worry on his report of medical history and then he amended the report and said he did not have depression/excess worry. As noted above, to rebut the presumption of sound condition for conditions not noted at entrance into service, 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. In this case, the December 2002 VA examiner said that the veteran began experiencing anxiety prior to military service and that military service exacerbated the veteran's panic disorder. The examiner appeared to have based this conclusion on a history provided by the veteran without any evidence to support this conclusion. Even though the examiner felt that it was "clear" that the disability had existed prior to service, this conclusion does not amount to clear and unmistakable evidence that the veteran's panic disorder both pre-existed service and was not aggravated thereby. In fact, the examiner concluded that the disability was in fact exacerbated during service. Consequently the veteran was presumed sound at his entrance into service. In August 1979 the veteran was seen for complaints of nervous problems. His affect was noted to be flat and he was noted to have poor eye contact. On a September 1979 report of medical history the veteran reported depression/excess worry and nervous trouble. The veteran reported a suicide attempt on the report of medical history prepared in conjunction with the separation examination dated in May 1983. The only opinion of record, that of the December 2002 VA examiner, concluded that the stressful and demanding duties of military service as likely as not contributed to the exacerbation of the veteran's panic disorder. In other words, it was as likely as not that in-service activity made worse the veteran's panic disorder with agoraphobia. Accordingly, because the veteran is presumed to have been sound at entry, this evidence tends to prove that the same panic disorder the veteran now experiences existed during service. Such evidence is not contradicted in the record and therefore leads to the conclusion that a grant of service connection is warranted. ORDER Entitlement to service connection for panic disorder with agoraphobia is granted. REMAND The Board finds that additional development is necessary before a decision on the merits of the claim of entitlement to service connection for a disability manifested by dizziness can be reached. The veteran's SMRs document several complaints of dizziness in service. In June 1979 the veteran reported dizziness off and on which was attributed to bilateral otitis media. In February 1980 the veteran complained of a cold with dizzy spells and headaches. In July 1981 the veteran reported feeling light-headed and fatigued with a frontal headache and an episode of incoordination. The examiner attributed the symptoms to underlying anxiety. The veteran reported dizziness on a report of medical history dated in September 1979 and on a report of medical history dated in May 1983. Associated with the claims file are private treatment reports from Lima Memorial Hospital dated from September 1992 to March 1999. In September 1992 the veteran reported a cough productive of sputum and dizziness for the previous five years. The examiner diagnosed the veteran with sinusitis and bronchitis. The veteran reported dizziness in February 1999 and he was diagnosed with vertigo. He reported dizziness in March 1999 and he was diagnosed with lightheadedness by history, orthostasis. The veteran was afforded a VA examination in January 2003 at which time the examiner noted that the veteran had recurrent episodes of dizziness. A computed tomography (CT) scan of the veteran's head was noted to be essentially normal. Chest x-rays were noted to reveal minimal interstitial accentuation nonspecifically. The veteran was referred for a neurology consultation and an electroencephalogram (EEG). A neurology consultation obtained at VA in April 2003 revealed that an EEG was abnormal with intermittent bilateral sloping and sharp activity. The examiner noted that this was most prominent in the frontotemporal regions and was more prominent on the right. The examiner said the abnormalities could be due to toxic or metabolic derangements or other factors that could cause intermittent bilateral cerebral dysfunction. The examiner concluded that the accompanying sharp waves raised the possibility of cortical irritability, but no frank epileptiform activity. The examiner did not provide a diagnosis or an opinion regarding the likelihood that any disability manifested by dizziness was related to the veteran's military service. Consequently, another VA examination with a diagnosis and medical opinion should be obtained. Furthermore, the veteran reported that he was treated for dizzy spells by a private doctor by the name of Tambrini and by the VA Medical Center (VAMC) in Dayton, Ohio. The RO sent the veteran a letter dated in February 2005 and requested that he submit a release for medical information for Dr. Tambrini and the dates he received treatment at the VAMC. No response was received from the veteran. However, because a remand is necessary the records should once be sought. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who have treated the veteran for a disability manifested by dizziness. All VA medical records from the Dayton VAMC should be obtained and after securing the necessary release(s), obtain any outstanding records, including records from Dr. Tambrini. 2. The veteran should be afforded a VA neurological examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. The examiner should obtain a detailed medical history from the veteran. Based on the veteran's history and a thorough review of the veteran's service medical records, as well as all other evidence obtained, the examiner should provide a diagnosis for the veteran's claimed disability manifested by dizziness and provide an opinion as to the medical probabilities that any currently diagnosed disability manifested by dizziness is related to the veteran's military service, including his complaints of dizziness in service. A complete rationale for all opinions expressed must be provided. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and any results must be included in the examination report. (The veteran is hereby notified that it is the veteran's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2006).) 3. Thereafter, review the claims file to ensure that the requested development has been completed. In particular, review the requested examination report to ensure that it is responsive to and in complete compliance with the directives of this remand, and if it is not, take corrective action. 4. After undertaking any other development deemed appropriate, re- adjudicate the issue remaining on appeal. If the benefit sought is not granted, the veteran and his representative should be furnished a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by VA. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs