Citation Nr: 0811597 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-03 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a psychiatric disorder, claimed as depression. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from October 1996 to February 1999. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) which declined to reopen the veteran's claim for entitlement to service connection for a psychiatric disorder. In December 2006, the Board, finding that new and material evidence had been received, reopened the claim for entitlement to service connection for a psychiatric disorder and remanded for further development. FINDING OF FACT The veteran's major depressive disorder arose during service. CONCLUSION OF LAW Major depressive disorder was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION When seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). A veteran may be entitled to service connection if a preexisting condition was aggravated during his service. A preexisting injury or disease will be considered to have been aggravated by active service if 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. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). If a disorder was not noted on entering service, clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation must be shown to overcome 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. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993). Accordingly, "a lasting worsening of the condition" -- that is, a worsening that existed not only at the time of separation but one that still exists currently is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). In this case, the report of examination upon entry into service in October 1996 is negative for psychiatric abnormality. The veteran reported on his October 1996 medical history that he had no prior treatment for a psychiatric disorder. The veteran is, therefore, entitled to the presumption of soundness at entry into active service. However, the Board must consider if the presumption of soundness is rebutted by clear and unmistakable evidence. In March 1997, a service examiner noted on a report of medical history that the veteran had increased anxiety and depression. The veteran was diagnosed with a major depressive disorder, single episode, in December 1998. The examining psychiatrist found the veteran to be fit, but recommended him for discharge. A December 1998 memorandum recommended the veteran for administrative separation based on a medical finding that he had a personality disorder. In a January 1999 report of medical assessment, a service examiner diagnosed the veteran with a major depressive disorder with personality disorder, not thought to be caused by service, but manifested during service. The veteran had reported that as a child his mother took him for treatment for depression. The veteran also reported on his February 1999 medical history as part of his discharge that he was treated as a child for depression. Additionally, written statements from two immediate in-service supervisors cumulatively show that the veteran was receiving psychiatric treatment and medication (Prozac) because he had been threatening harm to himself and others. The supervisors both indicated that they had sent the veteran for psychiatric treatment. The veteran's original DD 214 indicates that the veteran was discharged under honorable conditions due to a personality disorder. A November 1999 VA examination report based on review of the claims folder noted that the veteran had a dysphoric problems predating his military service but that his experiences in the field have impacted his overall emotional functioning. However, a September 2007 VA examination report noted that it was unknown and not possible to clearly and unmistakably show that the currently diagnosed psychiatric disorders pre- existed service as the only history provided was from the veteran. Based on the evidence, there is not clear and unmistakably evidence showing that a psychiatric disorder pre-existed service. While the November 1999 VA examination report noted that dysphoric problems predated military service, such alone does not rise to the level of clear and unmistakable evidence. When considered with the September 2007 VA examination report, there is simply insufficient evidence to show that the presumption of soundness has been rebutted. VA afforded the veteran an examination in September 2007 for which the claims folder was reviewed. The diagnosis included major depressive disorder (MDD) severe type with psychotic symptoms. The examiner added that the etiology of MDD was very much under research but believed to be the result of genetics, early and later life trauma and current stress. The veteran denied previous psychiatric history. The examiner concluded that based on the evidence it would be speculative or resort to mere speculation to etiologically relate the current psychiatric disorder of MDD to military service; as such this remained a speculative conclusion. While the September 2007 examiner noted it was speculative to determine an etiological relationship between military service and his current major depressive disorder, the Board notes the examiner appears to be opining on whether the military versus genetics or other factors were the underlying cause of the veteran's disorder. However, the condition need only have been incurred in service, not necessarily etiologically caused thereby. See generally, Monroe v. Brown, 4 Vet. App. 513 (1993). Here, the veteran was actually diagnosed with major depressive disorder, single episode, in service. After service, he was again hospitalized for major depression in May 2002 and January 2003, and has been treated as an outpatient for depression since December 2002. The current VA examination diagnosed major depressive disorder. While the veteran has also been diagnosed as having a personality disorder (which is not a disorder for which service connection can be established), the Board notes that in service and during hospitalizations, he was diagnosed with both major depressive disorder and a personality disorder, suggesting two separate entities. After resolving all doubt in the veteran's favor, the Board finds that the preponderance of the evidence establishes that his major depressive disorder was first manifested in service, and has continued since then. Thus, service connection is warranted. ORDER Service connection for major depressive disorder is granted, subject to the regulations applicable to the payment of monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs