Citation Nr: 21063367 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-00 479 DATE: October 14, 2021 ORDER Service connection for a psychiatric condition, to include depression, is denied. REMANDED Entitlement to service connection for a bilateral ankle disability is remanded. Entitlement to service connection for difficulty swallowing secondary to a laryngeal condition is remanded. FINDING OF FACT The competent and probative evidence shows that the Veteran's acquired psychiatric disorder, to include depression, clearly and unmistakably existed prior to his entrance into military service, and was clearly and unmistakably was not aggravated beyond its natural progression during service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disability, to include other depression in sustained remission, are not met. 38 U.S.C. §§ 1111, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1984 to January 1985 with additional reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2016 (psychiatric and bilateral ankles) and January 2018 (laryngeal nodule and difficulty swallowing)rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in December 2020 and a transcript of that hearing has been associated with the claims file. This matter was remanded by the Board in April 2021. Service Connection 1. Entitlement to service connection for a psychiatric condition to include depression 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 psychiatric disability pre-existed his military service from June 1984 to January 1985. Here, the Board notes that the Veteran has provided statements and a VA examiner has provided an opinion that his psychiatric disability pre-existed active service in that he experienced depression and suicidal thoughts prior to service. The appellant established "veteran" status based on his period of active duty service. The appellant established "veteran" status for the period of June 1984 to January 1985. The 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 May 1984 enlistment examination showed he was clinically assessed as normal for psychiatric conditions Indeed, this report does not reflect notations of defects, infirmities, or disorders regarding a psychiatric disability. Therefore, with respect to a psychiatric disability diagnosed as a psychiatric disorder, the presumption of soundness attaches. See 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). Additionally, the evidence is at least in equipoise as to whether depression manifested during service. Here, a May 2021 VA examiner opined that the Veteran's psychiatric condition clearly and unmistakably pre-existed service, it remitted prior to the Veteran's service entry, resurfaced after he was accused of plagiarism during service, remitted again post-service before resurfacing in the early 90's, a few years after his second marriage due to multiple stressors at the time. As such, the competent evidence shows that the psychiatric disorder manifested in service. Gilbert, 26 Vet. App. at 55. The Board will next turn to see if there is undebatable evidence that a psychiatric disorder both pre-existed was not aggravated by service. As noted in the prior Board remand, a December 2016 VA mental disorder examiner noted that the Veteran's depressive disorder most likely predated military service as he reported a suicidal ideation prior to the military due to a relationship break up. A May 2021 examiner opined that there is undebatable evidence that a psychiatric condition pre-existed the claimant's active duty service. In support, the examiner cited a review of the record, to include the December 2016 report and the Veteran's self reports. Based on the foregoing, the Board finds that the competent undebatably shows that the Veteran's had a psychiatric disorder that pre-existed his entrance onto active duty in June 1984. 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 pre-existing condition. Wagner, 370 F.3d at 1096. 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). 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 shown by the May 2021 VA examiner's opinion stating that the psychiatric disorder, which clearly and unmistakably pre-existed service was clearly and unmistakably not aggravated beyond its natural progression by service. This opinion applied the correct legal standard. In support, the VA examiner, a psychologist, explained history of the Veteran's psychiatric disorder, as beginning prior to service, remitting prior to service entry, resurfacing after he was accused of plagiarism and subsequently discharged, remitted post service, and resumed in the early 1990's, a few years after his second marriage due to family and other life stressors, to include having to deal with his wife's mental illness (mood swings and hallucinations) and her daughter's severe behavioral issues. The examiner dived deeper and stated that the Veteran has a history of intermittent depressive states, likely stressor-induced, that eventually became persistent after service discharge. The examiner added that his current diagnosis of Other Specified Depressive Disorder has been given due to his reports of persistent depressed mood since the early 1990's, with current symptoms not meeting full criteria for a persistent depressive disorder or major depressive disorder at this time. Based on the foregoing, VA has met its high burden of showing by clear and unmistakable evidence that the Veteran's depressive disorder both pre-existed 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 direct theories of entitlement is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral ankle disability is remanded. The Veteran asserts that his bilateral ankle disability diagnosed as arthritis was caused by active service. The Veteran testified that he injured his ankle during physical training and while running an obstacle course. He reported that he did not report the injury to medical personnel but that he has experienced ankle pain since separation from service. The Board notes that the Veteran underwent a VA examination concerning his ankle condition in December 2016. However, the Board finds that the opinion provided by the VA examination was based on an incomplete evidentiary record. Since the December 2016 VA examination, updated Social Security Administration records have been associated with the claims file as well as the December 2020 Board hearing transcript. Therefore, in light of the new evidence associated with the claims file, the Board finds that the Veteran should be scheduled for a new VA examination concerning the bilateral ankle disability. 2. Entitlement to service connection for difficulty swallowing secondary to a laryngeal condition is remanded. The Veteran asserts that his difficulty swallowing is secondary to the service connected laryngeal condition. In April 2021, the Board remanded for secondary service connection opinions. The Veteran was afforded a VA examination regarding this issue in June 2021. The VA examiner opined that it was less likely than not that the swallowing difficulty were caused by the service connected laryngeal condition. The Board notes that an opinion as to aggravation was not provided. An opinion for secondary service connection must address possible aggravation; otherwise it is inadequate to support a VA decision. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the examination does not address all aspects of secondary service connection and it fails to comply with prior Board remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Provide the Veteran with an appropriate examination to determine the etiology of his bilateral ankle disability. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must review the VA examination reports, Board hearing transcript, and Veterans statements of record. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (probability of approximately 50 percent) that the bilateral ankle disability had onset in, or is otherwise related to, active service, or onset within one year after separation from service. 2. Provide the Veteran with an appropriate examination to determine the etiology of his swallowing difficulty. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must review the VA examination reports of record. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (probability of approximately 50 percent) that swallowing difficulty had onset in, or is otherwise related to, active service. (b.) The examiner must also provide an opinion whether it is at least as likely as not (probability of approximately 50 percent) that swallowing disorder is (1) proximately due to OR (2) aggravated by the service connected laryngeal nodule, status post right true vocal cord operation. (Continued on the next page) The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.