Citation Nr: A20008772 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 191113-43818 DATE: May 18, 2020 ORDER Entitlement to service connection for an adjustment disorder is denied. FINDING OF FACT The probative evidence of record supports a finding that an adjustment disorder clearly and unmistakably preexisted service and was not aggravated beyond its natural progression during military service. CONCLUSION OF LAW The criteria for service connection for an adjustment disorder have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 1995 to August 1995. This matter is on appeal to the Board of Veterans’ Appeals (Board) from an August 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran timely appealed the portion of the rating decision pertaining to the issue above and requested direct review of the evidence considered by the RO. 38 C.F.R. § 20.202. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s adjustment disorder preexisted his military service. In an August 1995 mental evaluation, the Veteran reported a previous suicide attempt which he acknowledged he did not report during his service entrance examination or to his recruiter. The Veteran’s December 1994 entrance examination is absent any notations of defects, infirmities, or disorders related to an adjustment disorder. In August 1995, the Veteran reported suicidal ideation based on stressors such as yelling, physical demands, long hours, and harsh treatment by drill instructors. Upon mental evaluation in August 1995, he was diagnosed with adjustment disorder. Therefore, with respect to an adjustment disorder, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, to overcome the presumption 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). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran’s adjustment disorder preexisted service. During an August 1995 mental health evaluation, the Veteran reported when he was 17 years old, he attempted to commit suicide by shooting himself but was stopped by his foster parents. The Veteran did not disclose this information at entrance to service or to his recruiter. The Veteran presented for a VA examination in May 2016, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the Veteran did not develop any form of mental disorder as a result of his military experience. In support of this conclusion, the examiner explained that that the Veteran presented with a significantly chaotic childhood that involved multiple foster homes, witnessing a murder, and committing illegal acts that led to repeated incarceration in the juvenile system. The examiner noted the Veteran’s reports of significant problems with authority figures showing up, and how such problems appear to have continued during his brief period of military service. The examiner further notes the Veteran’s reports of unwillingness to tolerate the disciplined nature of his basic training in service and his unwillingness to abide by the exercises he was assigned and his refusal to cooperate. Thus, upon reviewing the evidence and examining the Veteran, the examiner concluded that the Veteran’s adjustment disorder or current mental diagnosis clearly and unmistakably existed prior to service. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). In the May 2016 VA examination, the examiner opined that the Veteran’s adjustment disorder which clearly and unmistakably existed prior to service was not aggravated beyond its natural progression due to any military experience. In support of this conclusion, the examiner explained that it does not appear that the Veteran experienced any significant traumatic events during his military service. As noted above, the examiner indicated that the Veteran was unwilling to tolerate the disciplined nature of his basic training in service and further reported his unwillingness to abide by the exercises he was assigned and instead, chose to refuse to cooperate. The examiner noted that the Veteran reported significant behavioral problems prior to service, during service, and post service. The examiner indicated that it does not appear that the Veteran’s military service caused any aggravation of any pre-existing mental health issues or altered the course of any pre-existing mental disorder. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The most competent and credible evidence of record illustrates that there is clear and unmistakable evidence that the disability was not aggravated by military service. As such, VA has met its high burden of showing by clear and unmistakable evidence both that the Veteran’s adjustment disorder preexisted service and was not aggravated by such. Thus, the presumption of soundness is rebutted in its entirety. As the presumption of soundness is rebutted, the second element of service connection is not met and entitlement to service connection based on direct theories of entitlement is not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board has considered the Veteran’s statements, to include his assertions that his adjustment disorder was caused or aggravated by his active duty service. See May 2019, July 2018 Correspondence; see also October 2016 Statement in Support of Claim. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., feeling depressed; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. To the extent the Veteran asserts the findings of the May 2016 examination report are inadequate, the Board finds that the examination findings were properly formulated and consistent with the Veteran’s history, to include service treatment records. In April 2020, the Veteran’s representative argued that the medical opinion was inadequate as no opinion on aggravation could be offered without a baseline level of severity at entry into service. Here, the examiner interviewed the Veteran and was able to apply medical principles to the medical records and reports from the Veteran such that the examiner was informed to the degree necessary to offer an opinion. (Continued on the next page.) For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.