Citation Nr: 20007119 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 12-03 039 DATE: January 28, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression, is denied. FINDING OF FACT The probative evidence of record does not show that the Veteran’s pre-existing psychiatric disorder was aggravated by his active duty service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include anxiety and depression, have not been met. 38 U.S.C. §§ 101, 1131, 1153; 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United Stated Army from April 1969 to January 1972. The claim was brought before the Board in March 2018 and was remanded for further development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). 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 (2012). If a preexisting disorder is noted upon entry into service, a 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. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2019). In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in severity. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153. Significantly, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b). In deciding a claim based on aggravation, the question turns on whether there has been any measurable worsening of the condition during service, and then on whether such worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary intermittent flare ups of a pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. at 296-97. Entitlement to Service Connection: Psychiatric Disorder The Veteran contends that he suffers from a psychiatric disorder, to include anxiety and depression, that was aggravated by his active duty service. The initial determination is whether a psychiatric disorder was present prior to service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). In this case, the record evidence shows that “situational nervousness - no problem” was noted on the Veteran's April 1969 entry examination report. The Board concludes, accordingly, that the presumption of soundness at entrance does not attach, and the Veteran entered service with pre-existing acquired psychiatric disorder. In support of his claim, the Veteran submitted lay statements from fellow servicemembers who described his nervous demeanor and depressive symptoms during his period of service. However, service treatment records are negative for any complaints, treatment, or diagnoses of an acquired psychiatric disorder. The December 1971 separation examination found no psychiatric abnormalities. In the absence of any treatment for the pre-existing condition in service, or any sort of change in his disability when comparing the separation examination with the entrance examination, the presumption of aggravation of a pre-existing condition is not shown, and the government is not required to show a lack of aggravation by using clear and unmistakable evidence. In September 2017, the Veteran received a VA examination. The examiner found that it was less likely than not that the Veteran’s acquired psychiatric disorder was related to his period of service, but no opinion was rendered regarding whether the Veteran’s pre-existing psychiatric disability was aggravated by service. Therefore, this opinion is inadequate for adjudication purposes. In October 2018, the Veteran received another VA examination. The examiner found that the Veteran reported that he had nervousness and depressed mood that predated his military service. The examiner provided that this was supported by his endorsement of depressed mood/worry and bedwetting on his April 1969 entrance examination. The examiner noted that several individuals who served with the Veteran reported he had a nervous demeanor and depressive symptoms in service. However, the Veteran was never diagnosed with or treated for anxiety/depression while in service. The examiner further provided that the Veteran’s 1978 and 1979 postmilitary diagnosis of anxiety/depression occurred within the context of situational stressors, which were mostly marital problems. The examiner further stated that VA records from 2006 and the Veteran’s self-report during the examination indicate that the Veteran’s anxiety and depressive symptoms are most closely tied to his difficulty coping with chronic non-service-connected medical issues. The examiner then opined that it was less likely than not that the Veteran’s anxiety/depression were aggravated beyond the course of the natural progression by military service. The examiner again rationalized that the Veteran was not diagnosed or treated for anxiety/depressive condition during military service. Although several individuals he served with reported the Veteran had a nervous demeanor, there is no indication that his symptoms, vaguely described by him and his peers, became permanently worse than they were prior to the start of his service. The examiner found that while the Veteran may have experienced temporary spikes in anxiety and/or low mood as the result of situational stress, which likely also happened prior to service based on his self-reports, there are no indications that he ever had a persistent, clinically significant psychiatric disorder. The examiner further found that whatever anxious or depressive symptoms the Veteran had, both premilitary and military, were subclinical in nature. The examiner lastly noted that when the Veteran sought treatment in 1978 and 1979 for anxiety/depression, his symptoms were within the context of postmilitary stressors, including marital problems/divorce. The examiner stated the Veteran did not seek treatment again until 2006, which were strongly linked to his difficulty coping with chronic non-service-connected medical issues, specifically his stomach problems following hernia surgery. The Board notes that VA treatment records show the Veteran has been seen and treated for depression and/or anxiety. However, none of the records found that his depression and/or anxiety were aggravated by service. In fact, since 2008, his psychiatric conditions have consistently been noted as being caused mainly by his multiple medical disabilities to include his low back pain and hernia, for which he is not service-connected. Further, in September 2009, the Veteran’s anxiety diagnosis was noted as secondary to his medical problems. Therefore, the Board finds the October 2018 VA opinion to be of significant probative value in determining that the Veteran’s psychiatric condition was not aggravated by his active service. The Board notes that the probative value of medical opinion evidence is based on the medical experts’ personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, the reviewing physician’s opinion was based on review of the Veteran’s lay contentions, his reported medical history, lay statements from his peers, and review of the medical evidence of record. Further, complete and thorough rationales were rendered for the opinion provided and are consistent with the medical evidence of record. The Board acknowledges the Veteran’s assertions that his psychiatric disorder was aggravated by service. The Board also recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether any psychiatric disability is related to his service, to include as being permanently aggravated by service, requires medical expertise that the Veteran has not demonstrated since psychiatric disabilities can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.