Citation Nr: 18160794 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 11-17 611 DATE: December 27, 2018 ORDER Service connection for a psychiatric disorder, to include depression, anxiety, bipolar II disorder, and borderline personality disorder is denied. FINDING OF FACT There is clear and unmistakable evidence both that the Veteran’s psychiatric disorders preexisted his active service, and were not aggravated during his active service. CONCLUSION OF LAW A psychiatric disorder was not incurred or aggravated in active service. 38 U.S.C. §§ 1101, 1110, 1111, 1153, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304(b), 3.306 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 2000 to May 2006. He was a member of the Idaho Air National Guard from August 2007 to May 2009. This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. This case was previously before the Board in August 2014. In November 2012, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. In March 2017 the Board requested a specialist opinion in a letter to the Veterans Health Administration (VHA). This opinion was rendered in May 2017. In September 2018 a letter was sent to the Veteran notifying him that an opinion had been received and enclosing that medical opinion. The Veteran was notified that he had 60 days to respond. In October 2018 the Veteran submitted additional argument and statements and a waiver of initial RO consideration of the submitted materials. Accordingly, the Board may proceed to adjudicate the claim on appeal. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist as to the matters being decided in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran offered testimony before the undersigned Veterans Law Judge at a Board hearing in November 2012 at the RO. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103(c)(2) (2018); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand and by obtaining a medical opinion in May 2017. The Board also finds that there has been compliance with the prior remand directives of August 2014. See Stegall v. West, 11 Vet. App. 268 (1998). VA’s duties to notify and assist are met, and the Board will address the merits of the claim. Applicable Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). In addition, service connection for certain chronic diseases, including psychoses, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2017); 38 C.F.R. §§ 3.307, 3.309(a) (2018); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection cannot be granted for a personality disorder. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. However, service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality (to include personality disorder), by superimposed disease or injury. VAOPGCPREC 82-90; Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, or disorders noted at entrance into service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2018). The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. The term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” and that “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” 38 C.F.R. § 3.304(b). In order 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. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran’s military records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012). Analysis At his November 2012 Board hearing the Veteran indicated that he had been taking Paxil since age 16 but had stopped taking it, as advised by his military recruiter, prior to joining the military. The Veteran indicated that he had been taking Paxil for three years prior to joining the military. He had been fine until 2002 but at that time his anxiety and panic attacks resurfaced due to job stress. He separated from the service in 2006 but had then joined the Air National Guard in August 2007. In July 2008 the Veteran attempted suicide due to military stress related to his job in aircraft maintenance. At his August 2000 military enlistment medical examination, the Veteran completed a report of medical history on which he specifically denied having or ever having had depression or excessive worry, frequent trouble sleeping, or nervous trouble of any sort. Clinical evaluation was performed at that time and the examiner indicated that no psychiatric abnormalities were present. Service treatment records (STRs) show that in September 2001, the Veteran sought to obtain a refill of Paxil, stating that he had been taking the medication since the age of 16 for depression and mood swings but had stopped in August 2000 when joining the military as advised by a military recruiter. The diagnosis was fluctuating moods, does not appear to meet depression criteria. Subsequent STRs show that the Veteran thereafter continued to receive counseling and medication for his psychiatric symptoms throughout the remainder of his active duty. Diagnoses included depression, anxiety, depressive disorder, and generalized anxiety disorder. At his August 2007 National Guard enlistment examination, the Veteran again specifically denied having or ever having had nervous trouble of any sort, including anxiety, panic attacks, depression, or excessive worry. He further indicated that he had never received counseling nor had he ever been evaluated or treated for a mental condition. No psychiatric abnormalities were identified on clinical evaluation. Subsequent clinical records document that the Veteran had multiple periods of hospitalizations at a private facility following suicide attempts in July and December 2008. The Veteran noted a history of hospitalization as a teenager after a suicide attempt. Diagnoses included generalized anxiety disorder; severe recurrent major depression, nonpsychotic; bipolar II disorder; and borderline personality disorder. After reviewing his records, National Guard officials determined that the Veteran’s psychiatric condition had existed prior to service and had not been aggravated therein. He was recommended for a medical discharge. Subsequent clinical records show that the Veteran continued to receive psychiatric care. Diagnoses contained in private treatment records include bipolar II disorder, attention-deficit/hyperactivity disorder, and unspecified personality disorder. Diagnoses contained in VA clinical records dated from August 2010 to July 2018 include anxiety disorder, major depressive disorder, panic attacks, and borderline personality disorder. The Veteran was afforded a VA psychiatric examination in March 2010. The examiner diagnosed borderline personality disorder which clearly predated military service. The examiner indicated that although the Veteran also had history of anxiety and depression documented in his STRs, these conditions could easily be secondary to his preexisting personality disorder. In a May 2012 addendum opinion, the examiner indicated that it was her opinion that the major debilitating psychiatric condition was borderline personality disorder and that the Veteran’s depression and anxiety symptoms were part and parcel of that personality disorder and did not represent separate psychiatric disabilities. She further indicated that it was less likely than not that the Veteran’s borderline personality disorder had been incurred in service. Rather, she opined that his personality disorder had existed prior to service and the evidence in the record did not indicate that it had been aggravated by service. A November 2014 VA examiner opined that all of the Veteran’s presently diagnosed disorders (Major Depressive Disorder and Other Specified Personality Disorder with borderline and avoidant features) had clearly and unmistakably pre-existed the Veteran’s active service. The examiner also stated that the Veteran’s military service did not aggravate his mental health condition beyond its natural progression, and stated in fact, that the Veteran’s mental health functioning appeared to have been more stable while he was on active duty. The examiner stated that it was not likely that the Veteran’s personality disorder caused his depressive disorder but that the personality disorder as likely as not exacerbated the depressive disorder. Although a psychiatric disorder was not noted on the Veteran’s August 2000 service entrance examination, the Veteran has indicated on multiple occasions that he had taken medications to treat his depression and other mental health problems for years prior to his entrance to service. Further, the many examiners who have addressed the question have all indicated that the Veteran’s psychiatric disability preexisted his military service. Based on the medical evidence of record and the Veteran’s own assertions, the Board finds that the evidence clearly and unmistakably shows that the Veteran’s psychiatric disorders preexisted his active military service. The Board also finds that the Veteran’s psychiatric disorders were clearly and unmistakably not aggravated during the Veteran’s active service. A May 2017 VA medical opinion from a VA physician was obtained. The physician noted review of the entire record, including the medical opinions and the 2012 Board hearing transcript. The physician found that it was clear and unmistakable that major depressive disorder pre-existed service, as the symptoms of this disorder were diagnosed and treated in both outpatient and inpatient settings five years prior to the Veteran’s active duty military service. The physician found that it was clear and unmistakable that generalized anxiety disorder pre-existed active duty service, as the symptoms of this disorder were diagnosed and treated in both outpatient and inpatient starting at the age of 15 years old, prior to the Veteran’s active duty services. Finally, the physician opined that the Veteran’s borderline personality disorder clearly and unmistakably pre-existed active duty service, as the patient experienced recurrent suicidal or self-mutilating behavior prior to enlisting in the Air Force. The physician next opined that it is clear and unmistakable that each pre-existing psychiatric disorder underwent no increase in disability during either period of service or that any increase was due to the natural progression of the condition. Regarding major depressive disorder recurrent and generalized anxiety disorder, the physician noted that the Veteran was taking Paxil prior to entering the service for depression and anxiety. Upon advice from the military recruiter, the patient stopped the medications. When medications are stopped that are used to treat depression, the natural course is for the depression and anxiety to return, which explains why the patient was seeking the medication refilled once he entered the service. Regarding borderline personality disorder, the physician noted that persons with borderline personality disorder have a pattern of instability of interpersonal relationships and self-image along with marked impulsivity. The physician noted that persons with this disorder tend to engage in self-mutilating behaviors, as well as recurrent suicidal behaviors, have affective instability due to a marked reactivity of mood in which they can experience episodes of irritability or anxiety, and a chronic feeling of emptiness. They have inappropriate intense anger and difficulty controlling their anger which is displayed in the self-mutilating behavior. The physician noted that the Veteran exhibited these behaviors when he was a teenager after getting into a fight with his father when his parents divorced and when he was confronted for infidelity. Finally, the physician also opined that the borderline personality disorder was not subject to superimposed disease or injury that resulted in a current psychiatric disability. The physician noted that the personality disorder is not likely to exacerbate the depressive disorder or anxiety disorder and it was unlikely that the personality disorder is a cause of the patient’s depressive disorder. Persons with borderline personality disorder tend to exhibit patterns of behaviors that deviate markedly from expectations of the norm, have emotional instability, and are impulsive. The May 2017 VA physician then provided a thorough review of some of the relevant evidence of record. The examiner noted that the Veteran served on active duty in the Air Force from November 2000 to May 2006 and was a member of the Idaho Air National Guard from August 2007 to May 2009. At the patient’s August 2000 military medical examination, he completed a record of medical history on which he specifically denied ever having had depression or excessive worrying. A clinical evaluation was performed at the time and the examiner indicated that no psychiatric abnormalities were present. In-service treatment records show that in September 2001 the patient sought to obtain a refill of Paxil, stating that he had been taking the medication since the age of 16 for depression and mood swings but has stopped in August 2000 when joining the military, as advised by a military recruiter. The Veteran continued to receive counseling and medication for his psychiatric symptoms throughout the remainder of his active duty. Diagnoses included depression, anxiety, depressive disorder, and generalized anxiety disorder. At the patient’s August 2007 National Guard enlistment examination, the Veteran again specifically denied having or ever having had nervous trouble of any sort, including anxiety, panic attacks, depression, or excessive worry. He further indicated that he never received counseling nor had he ever been treated or evaluated for mental conditions. No psychiatric abnormalities were identified on clinical evaluation. Clinical records document that the patient had multiple periods of hospitalizations at a private facility following a suicide attempt in July and December 2008. There is also a family history of depression. The patient has a history of hospitalization as a teenager after a suicide attempt. His diagnoses included generalized anxiety disorder, severe recurrent major depression, bipolar II and borderline personality disorder. The National Guard officials determined that the Veteran’s psychiatric conditions had existed prior to service and had not been aggravated therein. He was recommended for medical discharge. The patient has received several diagnoses through the military and private sector. These diagnoses include bipolar II disorder, attention deficit hyperactivity disorder, and unspecified personality disorder. In the VA clinical records dated from August 2010 to May 2011, his diagnoses include anxiety disorder, major depressive disorder, panic attacks, and borderline personality disorder. The patient received a VA psychiatric examination in March 2010. The patient was diagnosed with borderline personality disorder which clearly pre-dated military service. The examiner indicated that although the Veteran had a history of anxiety and depression documented, these conditions could easily be secondary to his pre-existing personality disorder. In May 2012 the examiner indicated that the major debilitating psychiatric condition was borderline personality disorder and that the patient’s depression and anxiety were part of the personality disorder and did not represent separate psychiatric disabilities. Based on the foregoing, the Board finds that there is clear and unmistakable evidence that the Veteran’s psychiatric disorders were not aggravated during his active service. In doing so, the Board finds May 2017 VA opinion is of significant probative value. The opinion contained a comprehensive review of the Veteran’s medical records and, contrary to the Veteran's assertions in his October 2018 statement, also had a well-reasoned rationale for the opinions provided. The examiner supported the conclusions with specific references to the Veteran’s treatment records. The Board notes that there is no medical opinion to contradict the May 2017 VA physician’s opinion. In fact, the March 2010 VA examiner (in the May 2012 addendum opinion) came to essentially the same conclusion as the May 2017 VA physician. Although the Veteran has submitted private treatment records pertaining to his psychiatric disabilities, these records have not provided any comment upon aggravation during service. While the November 2014 VA examiner indicated that the Veteran’s personality disorder as likely as not exacerbated the depressive disorder, both the personality disorder and the depressive disorder have been found to have preexisted the Veteran’s service, and no examiner has stated that the Veteran’s depressive disorder was aggravated in service beyond the natural progression of that disorder. The Board here notes that the evidence does not show any additional disability due to in-service aggravation of any personality disorder by superimposed disease or injury during service. Although the Veteran has referenced medical articles in support of his assertions, the articles are not specific to the Veteran and do not relate the Veteran’s disabilities to his military service. In short, the medical literature referenced by the Veteran does not contain the specificity to constitute competent evidence of the claimed medical nexus. See Sacks v. West, 11 Vet. App. 314 (1998). The Veteran has provided competent lay statements, including from his ex-wife, regarding his psychiatric symptoms, but the Board does not find these assertions that the underlying disabilities were worsened by service to be competent. In this particular case, such conclusions are not capable of lay observation and require expertise in determining whether the presence of symptoms indicates a worsening, which is a complicated psychiatric question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that personal knowledge is knowledge acquired through the senses-that which the veteran heard, felt, saw, smelled, or tasted). Furthermore, even if the assertions were competent, they are outweighed by the May 2017 VA physician’s thorough and fully supported etiological opinions. In sum, there is clear and unmistakable evidence both that the Veteran’s psychiatric disorders pre-existed his active service and were not aggravated thereby. The Board has been mindful of the “benefit-of-the-doubt” rule, but, in this case, there is not such an approximate balance of the positive and negative evidence to permit a more favorable determination. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David Nelson