Citation Nr: 18158131 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 14-10 834A DATE: December 14, 2018 ORDER Entitlement to service connection for a generalized anxiety disorder, to include depression is denied. FINDING OF FACT 1. The probative, competent evidence demonstrates that the Veteran’s generalized anxiety disorder, to include depression pre-existed his military service. 2. The probative, competent evidence does not demonstrate that the Veteran’s generalized anxiety disorder, to include depression is causally or etiologically related to active duty, nor was it worsened or aggravated beyond the natural progression of the condition. CONCLUSION OF LAW The criteria for service connection for a generalized anxiety disorder, to include depression have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § § 3.303, 3.304, 3.306, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had a period of active duty service from July 1969 to February 1970. The Veteran testified before the undersigned Veterans Law Judge in June 2015. This matter comes before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Since that rating decision, the Veteran has limited his appeal to the issue of service connection for generalized anxiety disorder, to include depression. In a March 2016 remand, the Board remanded the Veteran’s claim for a VA examination and opinion regarding the etiology and conflicting diagnosis of the Veteran’s psychiatric disorder. As the requested development has been completed, all remand requirements have been met to make a determination on the Veteran’s psychiatric disorder and the case may move forward without prejudice to the Veteran. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a psychiatric disorder, to include anxiety and depression Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131(2012); 38 C.F.R. § 3.303 (2017). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Every Veteran shall be 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. § 1111. This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not noted. Where a pre-existing disease or injury is noted on the entrance examination, section 1153 provides that “[a] pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air 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 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, the government must demonstrate 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. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F. 3d 845, 847 (Fed. Cir. 2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also 38 U.S.C. § 1111 (presumption of soundness). “[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.” Wagner, 370 at 1096. In such claims, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Wagner. If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption. Horn v. Shinseki, 25 Vet. App. 231, 234. To rebut that presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the condition was due to the natural progress of the disease. Horn, 25 Vet. App. at 235. To be “noted” within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. See id. at 240. In this case, the Veteran seeks service connection for his currently diagnosed psychiatric disorder. Service treatment records reflect treatment for a psychiatric disorder. The Veteran was repeatedly treated for a psychiatric disorder in-service between July 1969 and February 1970. However, at his induction examination, the examiner did not note any history of a psychiatric disorder. Although the examiner did not note the Veteran’s history of a psychiatric disorder at his induction examination, there is clear and unmistakable evidence that his psychiatric disorder existed prior to service, and that the disorder was not aggravated by service. The Board finds that the presumption of soundness has been rebutted because the Veteran’s psychiatric disorder clearly and unmistakably pre-existed his time in service and clearly and unmistakably was not aggravated during service. 38 C.F.R. § 3.306. December 1969 Service Treatment Records (STRs) reveal that the Veteran was diagnosed with an anxiety reaction. The examiner noted that the Veteran suffered an emotional seizure episode where he was observed shouting, raving, and physically thrust his hands breaking several closed glass windows. The Veteran was hospitalized and spent several days on the psychiatric ward. In the Veteran’s January 1970 STRs -Evaluation for Administrative Action, the Veteran was diagnosed with antisocial behavior disorder. The examiner noted that the Veteran has a long history of acting out behavior prior to his time in-service and listed examples of fighting, assault, hostility, belligerence and family difficulties. The examiner noted that there was no evidence in-service of psychosis or neurosis, however; the examiner opined that the airman is unable to adjust socially and emotionally to service-life and that the Veteran be separated from military service. In an April 1986 psychiatric C&P examination, the Veteran was diagnosed with substance abuse disorder, personality disorder, and antisocial type. The examiner noted that the Veteran had been showing patterns of antisocial personality behavior disorder since he was sixteen years old. In an October 2009 private psychiatric examination, the examiner diagnosed the Veteran with bipolar disorder with depression. In a November 2009 private psychiatric examination, the examiner diagnosed the Veteran with generalized anxiety disorder and alcohol dependence. The examiner noted that the Veteran was separated from the military for antisocial behavior. The examiner opined that substance abuse, substance aggravating, or cluster C personality contributed to the Veteran’s antisocial behavior. In a July 2010 private psychiatric medical opinion, the examiner noted that he had treated the Veteran for outpatient psychiatric treatment in the past year. The examiner diagnosed the Veteran with generalized anxiety disorder and alcohol dependence. The examiner opined that it is more likely than not that the Veteran’s alcoholism and generalized anxiety disorder began in the military. The examiner also noted that the most common onset of generalized anxiety disorder occurs in the young adult years. In a July 2010 VA psychiatric C&P examination, the examiner diagnosed the Veteran with personality disorder- not otherwise specified. The examiner opined that the Veteran’s claimed conditions of PTSD, anxiety, and schizophrenia is not caused by or the result of treatment received during the Veteran’s active military service. The examiner noted that the Veteran’s STR’s reveal no confirmed stressors in-service that would meet the criteria for a PTSD, nor did the Veteran report any psychotic based stressors that would create the basis for an anxiety disorder. The examiner noted that the Veteran during the examination reported a history of legal problems beginning prior to service, specifically being expelled from school and serving jail time for fighting a teacher as a high school senior. In a February 2011 VA psychiatric C&P examination, the examiner diagnosed Veteran with schizoaffective disorder, alcohol abuse, and personality disorder- not otherwise specified. VA outpatient psychiatric treatment records from April 2010 to November 2015 consistently diagnosed the Veteran with generalized anxiety disorder with varying levels of depression. In a February 2016 VA psychiatric examination, the examiner diagnosed the Veteran with personality disorder-not otherwise specified and prior alcohol use disorder. During the examination, the Veteran reported that his psychiatric issues began in basic training when he bumped his head and began having nightmares for which he was hospitalized. The examiner refutes the Veteran’s claims noting that his STRs do not support any evidence of the Veteran suffering a traumatic head injury or being hospitalized or treated for a head injury in-service. The examiner opined that the Veteran’s psychiatric disorder did not occur in or was not caused by military service. The examiner explained that the Veteran’s psychiatric disorder pre-existed his time in service. Furthermore, the VA examiner also opined that the Veteran’s pre-existing psychiatric disorder did not worsen in service and was not aggravated beyond the natural progression of the disease by service. The Veteran’s psychiatric events in-service were essentially a continuation of the pre-existing condition and not a permanent worsening or aggravation leading to a severe form of the disease. The Board has considered the Veteran’s lay statements as evidenced from a July 2010 Statement in Support of the Claim and a June 2015 hearing before the Board where the Veteran asserts that his psychiatric disorder began in service. The Board acknowledges that the Veteran offered lay statements asserting an in-service etiology of his psychiatric disorder. Considering the Veteran’s lay statements along with the medical opinions of record, the Board’s finding is that the evidence rebuts the Veteran’s assertion that the etiology of the Veteran’s psychiatric disorder occurred in-service. The Veteran’s STRs coupled with repeated VA examinations along with VA outpatient treatment records consistently diagnose the etiology of the Veteran’s psychiatric disorder to have occurred prior to his time in-service. The Veteran’s lay testimony is competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Veteran is clearly competent to attest to symptoms he may have experienced. His statements of experiencing a psychiatric disorder in-service are probative at the time and observable symptoms. However, in considering the Veteran’s lay statements, it is not argued or shown that the Veteran is qualified through specialized education, training, or experience to offer an opinion on the relationship between his current disability and service. While lay persons are competent to provide opinions on some medical matters (See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), the diagnosing of the Veteran’s disability is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). (Continued on the next page)   After a thorough review of the evidence of record, the Board notes that while service treatment records and post-service records contained notations of a generalized anxiety disorder, the February 2016 VA examiner specifically opined that the Veteran’s psychiatric disorder pre-existed service was not worsened or aggravated by his military service. The Board has determined that this examination is the most credible evidence related to the Veteran’s condition and its etiology. In view of the totality of the evidence, the Board finds that the Veteran’s currently diagnosed psychiatric disorder has not shown an increase in symptomology or frequency during or following his active military service. The February 2016 examination is more probative than the July 2010 private exam because the earlier exam did not specifically address whether the disability pre-existed service. The Board finds that there is clear and unmistakable evidence against the Veteran’s claim and, therefore, the applying the benefit-of-the-doubt doctrine is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Elliot Harris, Associate Counsel