Citation Nr: 21005050 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-35 715 DATE: January 28, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDING OF FACT The probative evidence of record supports a finding than the Veteran’s acquired psychiatric 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 acquired psychiatric disorder have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1999 to February 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development and it has since returned for further appellate review. Generally, to establish service connection, a claimant must show: (1) a present 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 acquired psychiatric disorder preexisted his military service. During a November 2000 medical evaluation that occurred prior to the Veteran’s separation from service, the Veteran was found to have posttraumatic stress disorder (PTSD) and personality disorder which existed prior to his enlistment. As personality disorders are not diseases or injuries within the meaning of applicable legislation, service connection cannot be awarded for such and further discussion of the Veteran’s personality disorder is not necessary. 38 C.F.R. § 3.303(c). The most competent and credible evidence of record shows that the Veteran underwent an enlistment examination prior to entrance into the period of service in question. The Veteran’s July 1999 entrance examination is absent of any notations of defects, infirmities, or disorders related to an acquired psychiatric disorder. 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). 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 acquired psychiatric disorder preexisted service. During a November 2000 medical evaluation that occurred during service, the Veteran reported that he was physically and sexually abused by his stepfather when he was a child for about four to five years. He reported being treated by a mental health professional for about a year with no awareness of a diagnosis being given. Upon review and evaluation of the Veteran’s symptoms, the November 2000 medical examiner opined that the Veteran was suffering from PTSD and personality disorder that existed prior to his enlistment. It was recommended that the Veteran be administrative separated from service based on these medical findings. VA treatment records are consistent with the Veteran’s in-service reports. For instance, during an October 2007 VA treatment, the Veteran reported having recurring thoughts of sexual abuse as a child. In a December 2007 VA treatment, it was noted that the Veteran was sexually molested when he was young. See also May 2019, June 2019 VA Treatment Records. Additionally, in reviewing medical records received from the Social Security Administration, the Veteran, in January 2018 and March 2018, reported having had traumatic childhood physical and sexual abuse. Based on a review of the evidence above, there is clear and unmistakable evidence that the Veteran’s acquired psychiatric disorder existed prior to his active duty service. 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 (quoting 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). The Veteran presented for a VA examination in May 2017, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. It was noted that the Veteran had a diagnosis of personality disorder and pre-service PTSD. The examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service, injury, or illness. In support of this conclusion, the examiner noted that the Veteran had reported stressors for his mental difficulties such as financial difficulties, blaming command for hardship, being yelled and called names during basic training, someone making a pass at him that he stopped, and seeing horseplay in the showers. The examiner explained that the rationale for the Veteran not having a diagnosis of PTSD aggravated beyond the normal progression by military service is due to the fact that his reported stressors are inadequate to sustain in-service aggravation of pre-existing PTSD trauma. The examiner indicated that the pre-service PTSD trauma would naturally precipitate certain behaviors such as being cautious, defensive, and wary of anticipation, similar behaviors to that which the Veteran reported experiencing during service as explained in his examination interview. Thus, based on the foregoing, the examiner opined that the claimed condition that clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. The Board finds this opinion highly probative as it was made by a medical profession 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 Veteran’s pre-existing psychiatric 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 acquired psychiatric disorder preexisted service and was not aggravated by such. Thus, the presumption of soundness is rebutted. 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 acquired psychiatric disorder was caused or aggravated by his active duty service. See October 2020 Substantive Brief. The Veteran asserts that his psychiatric disorder was aggravated by his service, such as exchanging fire with the enemy during deployment to Kosovo. See January 2020 Hearing Tr. at 10. 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 anxious; (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. Notably, upon reviewing the service personnel records, there is no indication of any deployment to Turkey, Kosovo, or Southern Bosnia. The list of overseas service shows only service in Germany. Service medical and personnel records are absent evidence to support the Veteran’s deployment to any conflict zone. The Veteran was not awarded any medals or decorations suggestive of such service, such as the Kosovo Campaign Medal. Thus, to the extent the Veteran asserts his preexisting psychiatric disorder was worsened by these events, the Board finds that the evidence is against a finding of the occurrence of these events and they cannot be considered. 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.