Citation Nr: 1322057 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 04-10 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to service connection for a gastrointestinal disorder. 3. Entitlement to service connection for a left shoulder/arm disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from September 1972 to August 1977, from January to July 1991, and from February 2003 to October 2004. He also served in the reserves, including on active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This appeal to the Board of Veterans' Appeals (Board) is from September 2005 and June 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In his November 2008 Substantive Appeal to the Board (on VA Form 9), the Veteran requested a hearing at the RO before a local Hearing Officer. The RO acknowledged this hearing request and informed the Veteran of the date of the hearing by letter dated in December 2008, but on that day he canceled the hearing. The Board thus deems his hearing request withdrawn. In September 2011, the Board remanded these claims to the RO via the Appeals Management Center (AMC) in Washington, DC. Since then, in a rating decision dated in July 2012, the RO granted the Veteran service connection for a mental disability pursuant to 38 U.S.C.A. § 1702, but solely for the purpose of providing him eligibility for hospital and medical treatment. The claim for service connection for a mental disability for VA compensation purposes remains on appeal. The claims of entitlement to service connection for a gastrointestinal disorder and left shoulder/arm disorder are again being remanded to the RO via the AMC for still further development and consideration. Whereas the Board, instead, is going ahead and deciding the claim for service connection for a psychiatric disorder for VA compensation purposes. FINDINGS OF FACT 1. There is clear and unmistakable evidence the Veteran's psychiatric disorder preexisted his third period of active military service. 2. But his psychiatric disorder, diagnosed most recently as depressive disorder, not otherwise specified (NOS), increased in severity during his third period of active military service beyond its natural progression. CONCLUSION OF LAW His active military service aggravated his psychiatric disorder. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b), (c) (2012). Here, though, since the Board is granting this particular claim, there is no need to discuss whether there has been compliance with these duty-to-notify-and-assist requirements. This is because even were the Board to assume, for the sake of argument, there has not been this compliance, so worst case scenario, this still ultimately would be inconsequential and, therefore, at most amount to nonprejudicial, i.e., harmless, error. 38 C.F.R. § 20.1102 (2012). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (clarifying that VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on an individual case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran bears this burden of proof of not only establishing this error, but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim). There simply is no such possibility in this instance. In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical and electronic ("Virtual VA") files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss, certainly not in exhaustive detail, each and every piece of evidence he has submitted or which VA has obtained on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each and every piece of evidence). Rather, the Board's analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him). II. Analysis This claim of entitlement to service connection for a psychiatric disability is predicated on the notion that the disability is the result of the Veteran's active military service, meaning directly incurred or aggravated during his service. According to written statements he and his representative submitted during the course of this appeal, including in October 2006, December 2008, March 2011 and April 2013, major depressive disorder manifested while the Veteran was in service and is one of the conditions that the Medical Evaluation Board (MEB) considered in separating him from service. Allegedly, there is documentation of record showing that a military doctor related the Veteran's psychiatric disability to a motor vehicle accident that occurred during Desert Storm/Desert Shield in 1991, and that the Veteran was diagnosed with major depression in 1994, a diagnosis that another doctor thrice confirmed in 2003. The Veteran contends that his service department found his psychiatric disability to have existed prior to his service, but to have been aggravated during his service in the line of duty and that, since service, he has continued to receive treatment for this disability. Considering these lay statements in conjunction with all other pertinent evidence in the claims file and applicable laws and regulations and precedent cases, the Board finds that the evidence supports a grant of service connection for a psychiatric disability on the basis that it was aggravated by his active service. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Certain diseases are considered chronic, per se, including psychoses, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). According to 38 C.F.R. § 3.384, a "psychosis" includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder NOS, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. Thus, service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be granted for a disease first diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b) (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is generally, though, as will be explained, not always, required to associate the claimed condition with service or a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); McQueen v. West, 13 Vet. App. 237 (1999). When deciding claims, the Board is required to consider all potential bases of entitlement - so direct, presumptive, and secondary. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). The Board has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the U. S. Court of Appeals for Veterans Claims (Court/CAVC) has jurisdiction by virtue of a notice of disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof). This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination. Going back first to the notions of direct and presumptive service connection, in interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to direct service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or correlation between the current disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. "Symptoms, not treatment [for them], are the essence of any evidence of continuity of symptomatology" under 38 C.F.R. § 3.303(b). Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, 708 F3d. at 1336. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit Court indicated that a showing continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Id. at 1339. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. at 1338-40. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required." Id. at *1338; see also id. at 1336, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible). See also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). Third, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales, 218 F.3d at 1380-81. As observed by the Federal Circuit Court, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent. See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability, but this is entirely dependent on the specific type of disability at issue. See Davidson, 581 F.3d at 1316. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy). So in certain instances lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). This is not always the case, however, as in certain other instances laypersons have not been found competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). The Federal Circuit Court has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007). Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Id. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. Id. To reiterate, the competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value. See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."). The Board discounts the weight of evidence it finds not to be credible. See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). In ultimately rendering a decision on appeal, the Board must analyze the competency, then credibility, and consequent probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Veteran's Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory (meaning both competent and credible), the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. In this case, post-service medical documents, including VA and private treatment records dated since the Veteran filed his claim, information from the Social Security Administration (SSA) and reports of VA mental disorders examinations performed in August 2005 and November 2011, establish that the Veteran currently has a psychiatric disability, variously diagnosed, including as depression, anxiety, schizoaffective disorder (SSA found him disabled based on this disability in 2008) and major depressive disorder, most recently as depressive disorder, NOS. The question is thus whether this disability was incurred in service or preexisted service and worsened therein. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred [or aggravated] in service."). The Veteran's service treatment records (STRs) pertaining to his first two periods of service reflect no mental health related complaints, findings or diagnoses. In February 2003, as a member of a Reserve Component unit, he was ordered to active duty, serving until October 2004. It appears he may not be presumed to have been in sound condition when he entered active duty in February 2003. A. Preexistence A Veteran is presumed to have been in sound condition when examined, accepted and enrolled in service, except for defects noted at the time of entrance, 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 (West 2002). According to 38 C.F.R. § 3.304(b) (2012), the term "noted" denotes only such conditions that are recorded in examination reports. A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). If a preexisting disability is noted upon entry into service, the Veteran may not bring a claim for service connection for that disability on a direct basis, but may bring that claim on an aggravation basis. In such a case, the provisions of 38 C.F.R. § 1153 apply and he has the burden of establishing such aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). To rebut the presumption of soundness, 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. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (holding that VA, rather than the claimant, bears the burden of proving that a disability preexisted service and was not aggravated therein); 70 Fed. Reg. 23,027, 23,029 (May 4, 2005) (applies to claims pending on or filed after May 4, 2005). The Veteran underwent a pre-deployment health assessment when he reentered active duty in February 2003. He reported spinal complaints and a history of a prior mental condition. The examiner discussed the spinal complaints only. Clearly then no psychiatric disability or symptoms of a psychiatric disability were noted during that entrance examination. This notwithstanding, there is clear and unmistakable evidence of record, including a STR dated just a week later, in February 2003, medical histories reported prior to and during 2003, treatment reports dated since 1999, and a report of VA examination conducted in November 2011, affirmatively indicating his psychiatric disability initially had manifested prior to, or had preexisted, his active service. He is thus not presumed to have been in sound condition with regard to his mental health when examined, accepted and enrolled into his third period of active service. More specifically, in the mid-1990s, it became evident that he was experiencing and receiving treatment for certain mental health related symptoms. During a VA general medical examination conducted in February 1995, he reported that he was on multiple medications, including Xanax, typically prescribed for anxiety and panic attacks. In May 1996, during an "Over 40" examination conducted while on reserve status, he acknowledged having frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia and nervous trouble. The examiner noted a history of anxiety. In May 1999, he presented to VA as a Persian Gulf War Veteran complaining of mental health related problems. An evaluating physician diagnosed major depressive disorder, but noted the Veteran had had just a single episode of mental health symptoms that were then in remission. The physician also noted, however, the Veteran was then currently undergoing treatment by a private psychiatrist and was on anti-depressant medication. In October 2001, during another examination conducted while on reserve status, the Veteran again reported that he had had frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia and nervous trouble. He also reported that he had been evaluated or treated for a mental condition. Indeed, according to H. Rivera Montes, M.D., as of February 7, 2003, just days before the Veteran was reactivated for a third period of active service, he was receiving treatment for anxiety. On February 13, 2003, during a pre-deployment evaluation, the Veteran reported a history of a prior mental health condition and, just a week later, an examiner confirmed that the Veteran had depression. 38 C.F.R. § 3.303(c) indicates that, in regards to pre-service disabilities noted in service, there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established no additional or confirmatory evidence is necessary. Section 3.303(c) goes on to indicate this determination includes situations where the manifestation of symptoms of chronic disease from the date of enlistment, or so close thereto, that the disease could not have originated in so short a period will establish pre-service existence thereof. According to a VA examiner who evaluated the Veteran in November 2011, the Veteran had first sought psychiatric treatment for depression in 1998, prior to his third period of active service. This condition then resolved and he developed depressive disorder, NOS, during service in 2003, which clearly and unmistakably preexisted his service. B. Aggravation A preexisting disease will be considered to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Clear and unmistakable evidence is required to rebut the presumption of aggravation when the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b) (2012). A claimant is not required to show that the disease or injury increased in severity during service before VA's duty under this rebuttal standard attaches. Cotant v. Principi, 17 Vet. App. 116 (2003). According to the STRs, just a week into the Veteran's third period of active duty a physician diagnosed him with depression. In April 2003, June 2003, August 2003 and June 2004, other physicians noted depression and anxiety, for which the Veteran was taking Paxil, and described his condition as a pain disorder, mood disorder, panic disorder, major depression, and major depressive disorder. According to a July 2003 DA Form 2173, the Veteran had major depressive disorder that was incurred in the line of duty. In July 2004, the Veteran underwent medical board proceedings, during which medical professionals noted that he had a panic disorder and depression that existed prior to service, but was not aggravated by service. They also noted that he had major depressive disorder that was incurred in the line of duty, but did not preexist service. A Physical Evaluation Board (PEB) later determined that the major depressive disorder had preexisted service and was not permanently aggravated therein. Ultimately, though, there is no disputing this disability played a role, albeit a secondary role, in the Veteran's eventual deactivation from duty. In September 2011, on request of the Board due to the conflicting nature of the STRs, a VA examiner clarified whether the Veteran's preexisting psychiatric disability was aggravated by his active service. She found that this disability was aggravated beyond its natural progression by an in-service injury, event or illness - his February 2003 reactivation. She explained that, upon reactivation and due to a physical medical profile, he served in Puerto Rico where he felt humiliated and depressed when fellow soldiers made fun of and mocked him. Based primarily on this opinion, the Board finds that the Veteran's preexisting psychiatric disability increased in severity during his service over and above its natural progression. In other words, the Board concludes this disability was aggravated by his service, the several different diagnoses notwithstanding. The Court (CAVC) has held that the scope of a claim for service connection for a mental disability includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (A claimant's identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability); see, too, Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (The Board is required to consider all issues raised either by the claimant or the evidence of record). Clemons concerned VA's failure to consider a claim of entitlement to service connection for a psychiatric disorder other than the one specifically claimed, even though it shared the psychiatric symptomatology for which the Veteran was seeking service connection. The Clemons Court found that, where a Veteran's claim identifies a disability without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record. The Clemons Court indicated that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. ORDER Service connection for a variously-diagnosed psychiatric disorder is granted. REMAND The Board sincerely regrets the additional delay that inevitably will result from this remand before deciding whether the Veteran is additionally entitled to service connection for gastrointestinal and left shoulder/arm disorders. But further development of these remaining claims is necessary to ensure there is a complete record and to give these claims every possible consideration. First, after the RO issued a Supplemental Statement of the Case (SSOC) in September 2009, VA associated pertinent VA treatment records with Virtual VA. Thereafter, in October 2012, the RO issued an SSOC that did not mention these additional records. Inasmuch as the Veteran has not waived his right to have the RO consider these records in the first instance, it is crucial for the RO to review them on remand in support of these claims. Second, in August 2005 and December 2011, VA assisted the Veteran in developing his claim for service connection for a gastrointestinal disorder by affording him VA examinations for the purpose of determining the etiology of his gastrointestinal disability. But as the representative asserts in an April 2013 Informal Hearing Presentation, the report of these examinations are inadequate to decide this claim as they include no opinion as to whether the Veteran's gastrointestinal disability was aggravated during or by his active military service, so even if determined to have preexisted his service. Such an opinion is critical in this case as the evidence shows he received treatment for this disability prior to and during his February 2003 to October 2004 period of active service. Accordingly, these remaining claims are REMANDED for the following additional development and consideration. 1. Return the claims file to the VA examiner who evaluated the Veteran's stomach in December 2011 for an addendum opinion discussing the etiology of the Veteran's gastrointestinal disability. Ask the examiner to review his prior opinion and a copy of this remand before proceeding with the following instructions. a. Review the pertinent evidence of record, which shows treatment for, and diagnoses of, gastrointestinal disabilities prior to and during the Veteran's third and final period of active service. Pay particular attention to the following documents: i. March 1999 report of esophagogastroduodenoscopy ii. Treatment records dated since 1999; iii. March 2001 report of endoscopy and stomach biopsy; iv. May 2001 report of computer tomography (CT scan) of the abdomen; v. October 2001 Report of Medical History; vi. May 2004 report of endoscopy; and vii. Reports of VA examinations conducted in August 2005 and December 2011. b. Offer an opinion as to whether any current gastrointestinal disability clearly and unmistakably preexisted the Veteran's third and final period of active service (February 2003 to October 2004). c. If so, also offer an opinion as to whether this preexisting disability increased in severity beyond its natural progression during the third period of active service. d. Provide complete rationale with references to the clinical evidence of record for each opinion expressed and conclusion reached. 2. Review the examiner's addendum opinion to ensure it includes all requested information. If it does not, return it to the examiner for correction. 38 C.F.R. § 4.2. 3. Then readjudicate these remaining claims in light of this and all other additional evidence, including that found in Virtual VA. If either claim is not granted to the Veteran's satisfaction, send him another SSOC and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these remaining claims. The Board intimates no opinion as to the ultimate disposition of these claims being remanded, but advises the Veteran that he has the right to submit additional evidence and argument concerning these claims. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). These claims must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs