Citation Nr: 1335654 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-20 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, currently diagnosed as major depressive disorder. ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran had active service in the United States Army from September 1961 to February 1963. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In June 2013, the Board reopened the claim of entitlement to service connection for an acquired psychiatric disorder and remanded the claim to the Appeals Management Center (AMC) for further development. Although the AMC did not review additional treatment records on Virtual VA nor did they issue a supplemental statement of the case reviewing even a July 2013 VA examination obtained pursuant to the Board's remand, in light of the decision below the Veteran is not prejudiced by the Board's consideration of the July 2013 VA examination as well as the additional VA treatment records without waiver of agency of original jurisdiction consideration pursuant to 38 C.F.R. § 20.1304 (2013). Bernard v. Brown, 4 Vet. App. 384 (1993). FINDINGS OF FACT 1. There is not clear and unmistakable evidence that the Veteran's acquired psychiatric disorder, currently diagnosed as major depressive disorder, preexisted active service. 2. The weight of evidence shows that the Veteran's acquired psychiatric disorder, currently diagnosed as major depressive disorder, is related to psychiatric treatment in service. CONCLUSION OF LAW An acquired psychiatric disorder, currently diagnosed as major depressive disorder, was incurred in active service. 38 U.S.C.A. §§ 1111, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the fully favorable decision below, a detailed explanation of how VA complied with the VCAA is unnecessary. Pertinent law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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 such service. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA's General Counsel has 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. 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. See VAOPGCPREC 3-2003, 69 Fed. Reg. 25178 (2004); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based on "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304(b)(1). Analysis The competent medical evidence, specifically the current VA treatment records and the July 2013 VA examination report, shows that the Veteran has an acquired psychiatric disorder, currently diagnosed as major depressive disorder. On entrance into service, it was noted that the Veteran had a history of nervousness on occasion. The first matter is whether the appellant is entitled to the presumption of soundness as to an acquired psychiatric disorder. A history provided by a claimant of the pre-service existence of a disorder recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting disorder. See 38 C.F.R. 3.304(b)(1); see also Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners); Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a layperson's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238 (1995) (supporting medical evidence is needed to establish the presence of a preexisting condition). The psychiatric evaluation on normal on the entrance examination, and the examining physician did not diagnose a psychiatric disorder. Therefore, an acquired psychiatric disorder was not noted on entrance into service and the Veteran is entitled to the presumption of soundness as to that disease. The next matter is whether there is clear and unmistakable evidence that the acquired psychiatric disorder pre-existed active service. Although an Army psychiatrist opined in November 1962 that the claimant's chronic emotional instability reaction existed prior to service, that psychiatrist did not provide a basis for that opinion. This opinion is a mere "bare conclusion without a factual predicate in the record." See Miller v. West, 11 Vet. App. 345, 348 (1998). There is not clear and unmistakable evidence that the Veteran's acquired psychiatric disorder, currently diagnosed as major depressive disorder, preexisted active service. The final matter is whether the current acquired psychiatric disorder is related to the in-service psychiatric treatment. The July 2013 VA examiner opined that the major depressive disorder was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that there is evidence of psychiatric complaints, findings, and treatment during his military service and that he was hospitalized during his military service with a diagnosis of emotional instability reaction given. The examiner noted that although the Veteran was clinically evaluated as normal at a January 1963 separation examination, he had complaints of psychiatric symptoms - trouble sleeping and nervous trouble - and that he continued to receiving psychiatric treatment after military service. The examiner concluded that a temporal relationship between the neuropsychiatric disorder and the appellant's military service is well established. There is no medical nexus evidence to support a conclusion that the Veteran's current acquired psychiatric is not related to active service. In summary, the Board is of the opinion that the Veteran has met all requirements needed to establish direct service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder. The benefit sought on appeal is accordingly allowed. Since the Board is granting service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, on a direct basis, the Board does not have to address whether this disorder is secondary to the various service-connected disorders. ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs