Citation Nr: 1320295	
Decision Date: 06/24/13    Archive Date: 07/02/13

DOCKET NO.  08-11 516	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran served on active duty from May 2003 to November 2003 and from December 2003 to April 2005.  The Veteran also had an unverified period of service with a reserve component.

This matter comes before the Board of Veterans' Appeals  (Board) on appeal from a an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. 

The Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge in December 2008.  A transcript of those proceedings has been associated with the Veteran's claims file.

The Veteran's claim was remanded for further procedural and evidentiary development in October 2009, July 2010, and September 2011.  Because the benefit sought remains denied, the claim has been returned to the Board.


FINDING OF FACT

The medical evidence of record establishes that the Veteran's acquired psychiatric disorder clearly and unmistakably preexisted his active service and did not worsen beyond the natural progression of the underlying disease process in service.


CONCLUSION OF LAW

An acquired psychiatric disorder was not aggravated by active service.  38 U.S.C.A. §§ 1110, 1111, 1132, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  VA thirdly has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, obtaining a medical opinion.  38 U.S.C.A. § 5103A. 

In this regard, the Board finds that a letter dated in August 2007 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates.  Furthermore, the Board finds that even if the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice in the above letter, that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letter as well as the rating decisions, the statements of the case, the supplemental statements of the case, and the Board remands.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  Prejudice by defective notice has not been asserted.  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the December 2008 Board hearing the claimant was assisted at the hearing by an accredited representative and the representative and the VLJ asked questions to ascertain the extent of any in-service event or injury.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the appellant or the representative that was not obtained.  The hearing focused on the elements necessary to substantiate the claim and the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

VA has also secured all available pertinent evidence and conducted all appropriate development.  Specifically, the record shows that the RO has obtained and associated with the claims file all identified and available in-service and post-service medical records including the service treatment records and the post-service records from the Central Arkansas VA Health Care System and from the VetCenter in compliance with the Board's earlier Remand instructions.  See 38 U.S.C.A. § 5103A(b); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order).

The Veteran was also afforded a post-remand VA examination in September 2010 and an addendum to that examination from the same doctor was obtained in September 2011.  Moreover, the Board finds this examination and addendum both adequate to adjudicate the claim and in substantial compliance with the directions of the Remands because, after a review of the record on appeal and/or an examination of the Veteran, the examiner provided medical opinions as to the origins of his acquired psychiatric disorder.  See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Also see Stegall, supra; D'Aries, supra; Dyment, supra. 

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claim below, the Board has reviewed all of the evidence in the claims file including those found in the electronic/virtual VA file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the claimant 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 the claim and what the evidence in the claims files shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Claim

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated therein.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 

A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for 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 service.  38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304(b).  

Only such conditions as are recorded in examination reports are to be considered as noted.  38 U.S.C.A. § 1132; 38 C.F.R. § 3.304(b).  In determining whether there is clear and unmistakable evidence to rebut the presumption of soundness, all evidence of record must be considered, including post service medical opinions. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000) and Adams v. West, 13 Vet. App. 453 (2000). 

In July 2003, the VA General Counsel issued a precedent opinion which held that, to rebut the presumption of sound condition under 38 U.S.C. § 1111, 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 claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  Id.  In its decisions, the Board is bound to follow the precedent opinions of the General Counsel.  38 U.S.C.A. § 7104(c). 

In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must thereafter determine whether there has been any measured worsening of the disability during service and then whether this constitutes an increase in disability.  See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993).  

In this regard, a preexisting injury or disease will be considered to have been aggravated by active 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 C.F.R. § 3.306(a).  Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened.  Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  The presumption of aggravation is applicable only if the pre-service disability underwent an increase in severity during service.  Hunt, 1 Vet. App. at 292, 296 (1991); See also Beverly v. Brown, 9 Vet. App. 402, 405 (1996).  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 C.F.R. § 3.306(b). 

In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998).  

With the above criteria in mind, the Board will first address the presumption of soundness at service entrance.  In this regard, the Veteran's September 2002 entry examination is negative for complaints or a diagnosis of an acquired psychiatric disorder.  See 38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304(b).  Therefore, the Board finds that the presumption of soundness may only be rebutted if the record contains clear and unmistakable evidence showing that his acquired psychiatric disorder pre-existed his military service and was not aggravated by service.  See 38 U.S.C. § 1111; VAOPGCPREC 3-03.

In this regard, VA treatment records document the Veteran claims regarding having a pre-service history of psychiatric problems.  See, for example, VA treatment records dated in June 2006, July 2006, February 2007, March 2007, and January 2008; and VetCenter records dated in December 2008.

Moreover, the Veteran was provided a VA examination in September 2010.  At this time, the claims file was reviewed and the examiner provided a description of the Veteran's complaints, medical history, and clinical findings on examination.  The diagnosis was major depressive disorder.  Thereafter, the examiner opined that the Veteran had a history of significant mental health issues prior to his military service.  In this regard, the examiner noted that a July 2006 VA treatment record noted that the Veteran had blind rages in school and during those times blackout with no memory as well as the fact that he had been physically abused by his step-father.  It was also noted that he had a strong family history of mental illness including depression with suicide of several family members.  Thereafter, the examiner noted that the July 2006 VA treatment record also reported that the Veteran likely had problems with an undiagnosed attention deficit disorder and substance use pre-service.  Lastly, the examiner opined that given the above examination and history that it is less likely than not that the Veteran's current major depressive disorder had its onset in and/or is otherwise attributable to his military service.  

Thereafter, at the direction of the Board remand in September 2011 an addendum to the September 2010 VA examination was obtained from the same doctor who conducted the September 2010 VA examination as to whether there was clear and unmistakable evidence showing that the Veteran's acquired psychiatric disorder (diagnosed as a major depressive disorder) pre-existed his military service.  The examiner responded in September 2011, included a description of the Veteran's complaints, medical history, and clinical findings on examination, and stated that there was clear and unmistakable evidence showing that his acquired psychiatric disorder pre-existed his military service.  

The examiner supported this opinion by noting that in a January 2009 VA treatment record the Veteran reported having problems with depression as a teenager, having a difficult adolescence, and an abusive step-father.  The Veteran also reported having a pre-Iraq heavy cocaine and methamphetamine use which use returned post-Iraq after re-establishing friendship with drug using friends.  The examiner also supported his opinion by noting the inconsistencies in a July 2006 VA treatment record in which the Veteran reported being laid back before Iraq but thereafter told the examiner, when recounting his youth, that he had had numerous fights.  Lastly, the examiner also supported his opinion by noting that a December 2008 Vet Center treatment plan noted the Veteran's primary problem was angry outburst which are the same symptoms that were noted during the claimant's adolescence.  

The opinions provided by the September 2010 VA examiner in that examination report as well as the September 2011 addendum are not contradicted by any other medical opinion of record.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).  Moreover, they are consistent with the evidence found in the VA and VetCenter treatment records.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion.").

Accordingly, the Board finds that the record contains clear and unmistakable evidence showing that the Veteran's acquired psychiatric disorder (diagnosed as a major depressive disorder) pre-existed his military service.  See 38 U.S.C. § 1111; VAOPGCPREC 3-03.

The Board will next consider whether there has been any measured worsening of the disability during service as well as whether this constitutes an increase in disability.  See Browder, supra; Hensley, supra.

In this regard, the Veteran's service treatment records are uniformly negative for complaints, diagnoses, or treatment for an acquired psychiatric disorder.  Similarly, his post-service medical records are negative for complaints or treatment for an acquired psychiatric disorder for over a year after his 2005 discharge from active duty.  See VA treatment records dated in June 2006. 

The Board also remanded the appeal in September 2011 to obtain an addendum to the September 2010 VA examination, from the same doctor, as to whether the Veteran's acquired psychiatric disorder (diagnosed as a major depressive disorder) was permanently aggravated beyond its natural progression during service.  As noted above, the examiner in the earlier September 2010 VA examination indicated that the claims file was reviewed and included a description of the Veteran's complaints, medical history, and clinical findings on examination.  Thereafter, the examiner opined in the September 2011 addendum that the Veteran's pre-existing acquired psychiatric disorder was not aggravated beyond its natural progress by an in-service injury, event, or illness.  

The examiner supported this opinion by noting, as stated above, that in a January 2009 VA treatment record the Veteran reported having problems with depression as a teenager, having a difficult adolescence, and an abusive step-father.  The Veteran also reported having a pre-Iraq heavy cocaine and methamphetamine use which use returned post-Iraq after re-establishing friendship with drug using friends.  The examiner also supported her opinion by noting the inconsistencies in a July 2006 VA treatment record in which the Veteran reported being laid back before Iraq but thereafter told the examiner, when recounting his youth, that he had had numerous fights.  Lastly, the examiner also supported his opinion by noting that a December 2008 Vet Center treatment plan noted the Veteran's primary problem was angry outburst which are the same symptoms that were noted during the claimant's adolescence.  

The opinion in the September 2011 addendum is not contradicted by any other medical opinion of record.  See Colvin, supra.  In fact, the Board finds that it is consistent with the Veteran's service treatment records which are uniformly negative for complaints, diagnoses, or treatment for an acquired psychiatric disorder and the post-service medical records which do not document such complaints for over a year after his 2005 discharge from active duty.  See Bloom, supra.

While the Veteran is competent to describe his subjective symptoms of his acquired psychiatric disorder, ascertaining whether a permanent worsening of a preexisting acquired psychiatric disorder occurred during service requires special medical training that the Veteran does not have and therefore it is a determination "medical in nature" and not capable of lay observation.  See Davidson, supra.  Accordingly, any lay opinions found in the record regarding the Veteran's military service causing a permanent worsening of his preexisted acquired psychiatric disorder is not competent evidence, and is not accorded any probative value.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). 

Therefore, the Board finds clear and unmistakable evidence the claimed disability existed prior to service, and did not increase in severity beyond its natural progression in service.  Accordingly, it may not be concluded the disability was incurred in or aggravated by service.  

ORDER

Service connection for an acquired psychiatric disorder is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs