Citation Nr: 20020945 Decision Date: 03/23/20 Archive Date: 03/23/20 DOCKET NO. 16-10 909 DATE: March 23, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s acquired psychiatric disorder began during active service or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to September 1970. This matter is on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, a hearing was held before the undersigned. A transcript of the hearing is in the record. The case was previously before the Board in November 2019 when it was remanded for further development. Acquired Psychiatric Disorder The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131. To establish service connection for an acquired psychiatric disorder, the evidence must show: (1) the existence of a current disability; (2) an 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. 38 C.F.R. §§ 3.303, 4.125(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Every Veteran shall generally be considered 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; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Generally, if a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance, VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran’s service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If VA fails to show by clear and unmistakable evidence that the pre-existing condition was not aggravated by active service, then the presumption of soundness has not been rebutted and the claim will be considered as a normal claim for service connection. See Wagner, 370 F.3d at 1094. Service connection is not available for personality disorders because personality disorders, in and of themselves, are not compensable disabilities. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. However, disability resulting from a mental disorder that is superimposed upon a personality disorder may be service-connected. Id. In Morris v. Shinseki, the United States Court of Appeals for the Federal Circuit held that a personality disorder is not the type of disease- or injury-related defect to which the presumption of soundness applies. Morris v. Shinseki, 678 F.3d 1346, 1351 (Fed. Cir. 2012). As such, if a personality disorder is shown, it is not necessary to address whether clear and unmistakable evidence showed that a personality disorder preexisted service and was not aggravated by service. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, a May 2017 VA examination reflects that the Veteran currently meets the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, 5th Edition) criteria for a diagnosis of major depressive disorder (MDD), moderate, with anxious distress. Thus, the first element of Shedden is satisfied. Initially, the Board has considered the theory of entitlement put forward by the Veteran’s representative during the July 2019 hearing that the Veteran’s acquired psychiatric condition may have pre-existed service but that, even so, the condition was aggravated during service. The Veteran’s July 1970 entrance examination did not note a psychiatric disorder at the time of enlistment but noted drinking with no habituation. Additionally, the evidence is at least in equipoise as to whether a psychiatric disorder manifested during service. A September 1970 Naval Aptitude Board Report notes that a mental status examination failed to reveal evidence of disabling neurosis, psychosis, or organic brain dysfunction but that there was evidence of significant character pathology, predominantly of a passive and aggressive nature. It notes that the Veteran was “an irritating influence in his company” and alleged incidents involving exposing himself to fellow recruits on one or two occasions. It noted that the Veteran’s “marked immaturity associated with his troubled past history and the current clinical findings render[ed] him unsuitable for further military service” and that an “expeditious administrative separation [was] strongly recommended” because “[r]etention on active duty would lead to deterioration of his condition and repeated admissions to the sick list.” Therefore, with respect to an acquired psychiatric disorder, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Initially, the Board notes that the above-discussed in-service evidence indicated the possibility that the Veteran had a personality disorder, which as indicated above is not a disability that is entitled to service connection. However, in December 2019, the Veteran was provided with a VA examination to address whether he had a personality disorder. After examining the Veteran and reviewing the claims file, the examiner concluded that the Veteran did not meet the DSM-5 criteria for a personality disorder. Accordingly, the provisions governing personality disorders are inapplicable. It is notable the examiner also opined that there is clear and unmistakable evidence of the pre-existence of nocturnal enuresis (involuntary nocturnal incontinence). However, this opinion is not probative for the claim on appeal because the Veteran is not claiming nocturnal enuresis as part of his claim for service connection for an acquired psychiatric disorder, and the evidence does not reflect that he currently has that condition. The most competent and credible evidence of record illustrates that the Veteran’s major depressive disorder did not clearly and unmistakably preexist service. For example, statements from the Veteran’s sister and mother indicate that they did not observe him experiencing psychiatric symptoms until after service. The Board finds these statements regarding observable symptoms to be both competent and credible. Additionally, the May 2017 and December 2019 VA examination reports do not reflect clear and unmistakable evidence that a psychiatric condition existed prior to the Veteran’s service. Although the May 2017 examiner noted that the “Veteran reported his anxious mood and difficulties managing anger onset prior to his service,” these reports are not clear and unmistakable evidence that the Veteran met the criteria for a diagnosis of an acquired psychiatric condition prior to enlistment. Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the disability would be determined upon the assumption that the disability was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). Regarding in-service events, the Board also notes that the Veteran has provided credible and competent reports of in-service events involving harassment. In an August 2016 VA Form 21-0781a, Statement in Support of Claim for Posttraumatic Stress Disorder (PTSD) Secondary to Personal Assault, the Veteran described “sexual advances made in the shower” and being hit from behind and being “grab[bed in his] private area,” and he also described other incidents of harassment such as blanket parties. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s acquired psychiatric disorder was related to an in-service injury, event, or disease. February 1982 private treatment records reflect that the Veteran was referred for a psychiatric evaluation and noted that the Veteran had no previous psychiatric problems prior to November 1, 1981. The clinician noted that the Veteran began experiencing a sleep disturbance, increased tension, and anxiety after sustaining a low back injury. He reported irritability with his family and significant conflict. He reported a marked decline in his interest in outside activities and being more socially withdrawn, with depressed mood and crying spells. January 1983 private treatment records note depression and a history of overdoses on sleeping pills. December 2010 VA treatment records reflect that the Veteran reported feeling depressed “mainly because of his medical problems.” The Veteran was provided with a VA examination in May 2017 in which the examiner opined that the Veteran’s MDD is less likely than not caused by or a result of his military service. The examiner provided an extensive description of the Veteran’s relevant social, marital, and family history; occupational and educational history; mental health history; legal and behavioral history; and substance abuse history. The examiner acknowledged the in-service events discussed above and noted additional post-military stressors including two incidents in which the Veteran was shot and nearly killed. She noted that these stressors did not appear to have resulted in symptoms consistent with PTSD. She explained that, with regard to the Veteran’s current diagnosis of MDD, there is no evidence of symptoms of or treatment for depression during the Veteran’s brief period of active duty service. She stated that VA treatment records reflect that his depressed mood onset after service in response to post-military life stressors. This opinion reflects thorough consideration of the Veteran’s relevant medical history and is supported by the evidence of record. The Board therefore assigns a high degree of probative value to this opinion. The Board acknowledges the lay statements provided by the Veteran’s family members in which they state that his acquired psychiatric disorder is related to his service. In a May 2011 VA Form 21-4138, Statement in Support of Claim, the Veteran stated that he “feel[s that his] long history of psychiatric problems started when [he] was on active duty.” A July 2015 statement from the Veteran’s mother indicates that when the Veteran came back from service he was not the same individual as when he had left for service and that he struggled with depression. Further, during the July 2019 hearing, the Veteran’s sister stated that the Veteran “was okay when he went” into service but that he was suicidal afterwards. However, although these lay statements are competent regarding the symptoms observed, the Board finds that these statements have little probative value as to etiology because lay persons are not competent to precisely delineate the date of incurrence or etiology of a medically complex condition such as an acquired psychiatric disorder. Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). Moreover, determining the etiology of the Veteran’s condition in this case is particularly complex, as the Veteran has an extensive history of service-related and nonservice-related events. See, e.g., King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009). The record reflects that the May 2017 examiner considered the Veteran’s medical history and specifically discussed the post-military suicide attempts with thorough detail and consideration when providing her opinion. Accordingly, the Board finds that a preponderance of the evidence is against finding that the Veteran’s acquired psychiatric disorder is related to an in-service injury, event, or disease. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim for service connection, the benefit-of-the-doubt rule is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, 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.