Citation Nr: 20043430 Decision Date: 06/26/20 Archive Date: 06/26/20 DOCKET NO. 16-57 481 DATE: June 26, 2020 ORDER Service connection for an acquired psychiatric disability is denied. FINDING OF FACT The Veteran’s acquired psychiatric disability clearly and unmistakably existed prior to enlistment and clearly and unmistakably was not aggravated beyond its natural progression by active duty service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2002 to September 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision. In May 2019, the Veteran testified at a videoconference Board hearing before the undersigned, and a transcript is of record. In September 2019, the Board remanded this issue for further development, and the case has been returned for appellate consideration. The Board finds there has been substantial compliance with its September 2019 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial and not strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)); see also Dyment v. West, 13 Vet. App. 141, 146–47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Injuries or disease incurred or aggravated during active service are presumed to be incurred in the line of duty. 38 U.S.C. § 105(a); see 38 C.F.R. §§ 3.1(m), 3.301(a). A service department finding that injury, disease, or death occurred in line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. 38 C.F.R. § 3.1(m). Likewise, a service department finding that injury, disease, or death was not due to misconduct will be binding on VA unless it is patently inconsistent with the facts and the requirements of laws administered by VA. 38 C.F.R. § 3.1(n). When the evidence of record includes service department findings, it is error for the Board to make its own findings of facts of line of duty and willful misconduct without addressing the service department findings before it. Crediford v. Shulkin, 877 F.3d 1040, 1046–47 (Fed. Cir. 2017). “The regulations recognize that the Service Department is in the best position to assess willful misconduct and line of duty actions of its Service.” Id. (citing United States v. Yellow Cab Co., 338 U.S. 338, 341 (1949)). At the time of a service entrance examination, 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 (obvious or manifest) evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; see 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004). The presumption of soundness arises in favor of a veteran who claims benefits when a preexisting disability not noted on the report of the entrance examination arises during service. See Crowe v. Brown, 7 Vet. App. 238 (1994). Only such conditions as are recorded in examination reports are considered as ‘noted.’ 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is ‘noted’ at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). The Veteran’s reporting of preservice medical history at the time of induction does not constitute a notation of those conditions. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). VA’s General Counsel has held that 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. VAOPGCPREC 3-2003; see Horn v. Shinseki, 25 Vet. App. 231, 236 (2012). General Counsel has held that the claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong attaches. VAOPGCPREC 3-2003. In other words, the presumption of soundness is a two-prong test with the burden on VA to show in rebuttal: 1) clear and unmistaken evidence that an injury or disease existed before acceptance and enrollment, and 2) clear and unmistakable evidence that the preexisting injury or disease was not aggravated by service. Even if VA rebuts the first prong, the presumption of soundness still attaches and it is presumed that service aggravated the preexisting injury or disease unless VA rebuts the second prong. See VAOPGCPREC 3-2003. VA may find a lack of aggravation under 38 U.S.C. § 1111 if the clear and unmistakable evidence shows 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 v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (citing 38 U.S.C. § 1153 and 38 C.F.R. § 3.306); but see Horn v. Shinseki, 25 Vet. App. 231, 238 (2012) (emphasizing that “neither the presumption of aggravation of section 1153 nor the regulation implementing that statutory provision, § 3.306, has any application to an analysis under the aggravation prong of the presumption of soundness in section 1111.”). While a veteran’s statements reporting medical history at the time of enlistment do not create a notation of a preexisting condition, thereby permitting the presumption of soundness to attach, VA can use those statements as evidence to rebut the presumption. Horn v. Shinseki, 25 Vet. App. 231, 237–8 (2012); Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000). The statute does not limit what kind of evidence VA can use to rebut the presumption, and VA may consider records concerning the inception of a condition made before, during, or after service. Harris v. West, 203 F.3d 1347, 1349–50 (Fed. Cir. 2000). “While contemporaneous clinical evidence or recorded history may often be necessary to satisfy the heavy burden of rebutting the statutory presumption of soundness,... there is no absolute rule in the statute, the regulation, or the case law requiring such evidence before the presumption can be rebutted.” Harris v. West, 203 F.3d 1347, 1351 (Fed. Cir. 2000). The Board observes that 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130 were updated via an interim final rule, made immediately effective August 4, 2014, in part to substitute references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) for the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The Secretary directed that the changes be applied to applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, but not to claims certified to or pending before the Board, the United States Court of Appeals for Veterans Claims (Court), or the United States Court of Appeals for the Federal Circuit. 79 Fed. Reg. 45, 093, 45,094-096 (Aug. 4, 2014). Since the Veteran’s claim was pending before the AOJ on August 4, 2014, the DSM-5 applies. The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claim. From the outset, the Board notes that the Veteran, while entirely competent to report her symptoms, is not competent to proffer an opinion as to diagnosis or etiology of those symptoms. See 38 C.F.R. § 3.159(a)(1)–(2) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469–70 (1994) (noting that competent lay evidence requires facts perceived through the use of the five senses); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that “lay persons are not competent to opine on medical etiology or render medical opinions.”). Such opinions require specific psychiatric medical training and are beyond the competency of a lay person, and accordingly, the Board finds the medical findings more probative. See Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995); Prejean v. West, 13 Vet. App. 444, 448–9 (2000). Entitlement to service connection for an acquired psychiatric disability. The Veteran seeks service connection for an acquired psychiatric disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran’s acquired psychiatric disability clearly and unmistakably existed prior to enlistment and clearly and unmistakably was not aggravated beyond its natural progression such that service connection is not warranted. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.303(a), (d), 3.304(b); VAOPGCPREC 3-2003; Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In July 2013, the Veteran was afforded a VA examination for mental disorders, during which diagnoses made under the DSM-IV diagnostic criteria were noted for recurrent major depressive disorder and personality disorder NOS. In September 2016, the Veteran was afforded a VA examination for mental disorders, during which diagnoses under the DSM-5 diagnostic criteria were unspecified personality disorder and unspecified depressive disorder. It was stated that the reported symptoms of depression may have been emotional lability related to the personality disorder, so the diagnosis was rendered with caution. It was the examiner’s opinion that the primary diagnosis was the personality disorder and the depressed mood was likely secondary to difficulties related to the personality disorder. In January 2020, during a VA examination for mental disorders, unspecified personality disorder was diagnosed. The examiner opined that the Veteran’s “depression” was a symptom of her unspecified personality disorder and that her depression was “not significant enough to warrant a DSM-5 diagnosis. It is just a symptom.” The Veteran’s VA medical records show recurring diagnoses of major depressive disorder and unspecified personality disorder as recently as January 2020. As the Veteran has a currently diagnosed acquired psychiatric disability, the first Shedden element is met. The Veteran’s service treatment records reveal that her February 2001 report of medical history for enlistment was silent for any mental health issues. Accordingly, the Veteran is presumed to have been sound upon entrance into service. 38 U.S.C. § 1111; see 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004). Her service treatment records show that between August 2002 and her separation from service in September 2004 she had considerable contact with treatment providers for mental health issues. Her military personnel records show that in December 2003 and January 2004 the Veteran underwent a Command Directed Mental Health Evaluation performed by Maj. D.T.G. Under DSM-IV she was diagnosed with dysthymic disorder on the basis of observed sleep disruption, low self-esteem, low energy, difficulty making decisions, and feelings of hopelessness. A diagnosis of personality disorder, not otherwise specified (NOS), with prominent schizoid and dependent features was made based upon observed social detachment, self-isolation, and difficulty assuming responsibility for major areas of her life. Prognosis for improvement was “somewhat guarded.” A June 2004 Medical Board Report showed that major depression was incurred in service with onset June 2003, and it was not permanently aggravated by service. It showed that social phobia existed prior to service with onset in 1985, and it was not permanently aggravated by service. A July 2004 medical evaluation board report by Maj. D.E.P. showed that the initial diagnosis was social phobia with an ongoing mood component. The prior diagnosis of dysthymia was noted but it was stated: “At times, however, it seems that her symptoms are severe enough to warrant a diagnosis of Major Depression.” It was stated that there was agreement with the earlier diagnosis of personality disorder NOS but it was found “hard to reconcile having both Schizoid and Dependent features.” The assigned diagnoses were major depressive disorder, single episode, moderate; social phobia; and personality disorder NOS. It was recorded that the major depression was incurred in the line of duty while the social phobia existed prior to service. A July 2004 Findings and Recommended Disposition USAF Physical Evaluation Board report showed that major depression associated with special [sic] phobia was not incurred during service. It was stated that the Veteran’s “medical condition, which is expected to significantly improve/resolve with discharge from the military existed prior to service (EPTS), has not been permanently aggravated through military service, and is incompatible with the rigors of military service.” The Veteran was discharged from service September 27, 2004, due to having been determined to be physically unfit for continued military service due to a physical disability that existed prior to military service, and discharge was directed without disability benefits. The July 2013 VA examiner opined that the Veteran’s depression was no more related to her military experience than her non-military experiences. It was explained that the “seeds of her depression preceded her military experience and her long term feelings of not ‘fitting in’ occurred preceding her military experience, occurred during her miliary experience and continues today.” The September 2016 VA examiner stated: “With regard to the question of aggravation of depression by service, it is the opinion of this examiner that the Veteran’s depression was not aggravated or permanently worsened by service.” It was noted that the evidence suggested that the Veteran’s depression came and went related to her personality disorder features, which affected her perception and ability to cope with life stressors at various times. It was opined that it was not clear whether the Veteran had a separate depression disorder as her symptoms could be a consequence or symptoms of her personality disorder. It was stated: “There is no evidence to suggest that the military worsened or aggravated her previously existing personality disorder or depression.” It was noted that the Veteran reported having a couple of friends in service whereas prior to service she did not have any friends. During the Veteran’s May 2019 Board hearing, she stated that she disagreed that she had a pre-existing mental condition as she had normal grieving after her mother passed away prior to service and had not had any treatment. She stated that her symptoms of a mental condition began during service because she was serving overseas without a framework or support system from home. She also reported that every doctor had agreed that whatever condition she had prior to service was exacerbated by service. She stated that during VA examinations she had not been able to articulate her issues clearly and that her treatment records were more representative of her condition. The January 2020 VA examiner opined that the Veteran’s personality disorder was less likely than not incurred in or caused by service because “there is no evidence to suggest that the military worsened or aggravated her previously existing personality disorder or depression.” The examiner noted that, on the one hand, no mental disorder was reported at the time of entrance into service. It was stated that, on the other hand, the Veteran stated during the examination that she had been depressed prior to entering service due to her mother’s death, which the examiner noted would not normally be a mental disorder. It was noted that the Veteran indicated that she had become somewhat anxious and depressed during service, “but she never related this depression or anxiety to anything other than the stress of the military.” It was opined: “It did not seem to be a progression of her previous depression nor an aggravation. There is no evidence to suggest that the military worsened or aggravated her previously existing personality disorder or her depression, which she seems to have had prior to the military, during the military, and to this day.” The Board notes that one report of the Medical Board indicated that the Veteran had onset of major depression during service and that she has had a long-standing diagnosis in her VA medical treatment records of major depressive disorder, which was made prior to the adoption of the DSM-5. Under the DSM-5, the September 2016 VA examiner rendered the diagnosis of unspecified depressive disorder with caution as it was felt the symptoms were related to the personality disorder. The January 2020 VA examiner opined that the Veteran’s symptoms of depression did not rise to the level of the diagnostic criteria for a diagnosis of depression. The Board is precluded from differentiating between symptomatology attributed to one or another diagnosis in the absence of medical evidence that does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996)). Here, the medical professionals have pragmatically treated the Veteran’s symptoms of feeling depressed as a manifestation of her personality disorder. Indeed, the September 2016 VA examiner opined that the Veteran’s depression came and went related to the fluctuation of her personality disorder features and the January 2020 VA examiner was unable to diagnose depression under the DSM-5. Consequently, for the purposes of this decision, the Board attributes all the Veteran’s psychiatric symptoms to her personality disorder. The Board finds that the service department Medical Board reports establish that the Veteran’s acquired psychiatric disability clearly and unmistakably existed prior to service. As this finding was based upon medical records of considerable contact with mental health service providers during service and several examinations to determine fitness to continue service, the Board finds that the Medical Board’s determination was based upon clear and unmistakable evidence. Furthermore, it was made at a time when the Veteran’s memories of her pre-service issues were freshest. Due to the nature of the in-depth consideration of the matter, the Board finds the Medical Board’s conclusion to be analogous to a line of duty determination such that it may be considered a service department finding that is binding on VA unless it is patently inconsistent with the requirements of law administered by VA. See 38 C.F.R. § 3.1(m). Recognizing that the Medical Board was in the best position to assess whether the Veteran’s condition existed prior to enlistment and that its determination was supported by clear and unmistakable evidence, the Board does not find the Medical Board’s finding patently inconsistent with VA requirements. See Crediford v. Shulkin, 877 F.3d 1040, 1046–47 (Fed. Cir. 2017). Likewise, the Board finds that the Medical Board reports establish that the Veteran’s acquired psychiatric disability clearly and unmistakably was not permanently aggravated by service. Again, the Medical Board was in the best position to assess the Veteran’s pre-service and in-service symptomatology. The conclusion that the Veteran’s acquired psychiatric disability clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated by service is further supported by the VA examiners’ medical opinions. The July 2013 VA examiner opined that the Veteran had issues with fitting in prior to service and that the resulting depression from that during service was not an aggravation or permanent worsening of the condition. Likewise, the September 2016 VA examiner noted that the Veteran reported having friends during service whereas prior to service she did not such that there was no support for finding worsening of her condition. The January 2020 VA examiner noted that the Veteran never associated her in-service symptoms with anything other than the stress of being in the military. Here, the probative evidence establishes that the Veteran’s acquired psychiatric disability clearly and unmistakably existed prior to service and it clearly and unmistakably was not aggravated beyond its natural progression by service. There is no evidence to the contrary. While the Veteran believes that her acquired psychiatric disability did not exist prior to service, the Board reiterates that VA is bound by the service department’s finding as that finding is not patently inconsistent with the facts and requirements of the laws administered by VA . Consequently, as there is no in-service incurrence or aggravation of disease or injury, the second Shedden element is not met, and the claim fails. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, 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.