Citation Nr: 21070838 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 18-38 400 DATE: November 26, 2021 ORDER Service connection for an acquired psychiatric disorder, to include major depressive disorder, is granted. REMANDED The claim of entitlement to service connection for a left foot disorder is remanded. FINDING OF FACT An acquired psychiatric disorder clearly and unmistakably pre-existed the Veteran's military service and was aggravated by his service. CONCLUSION OF LAW An acquired psychiatric disorder, which existed prior to service, was aggravated by the Veteran's military service. 38 U.S.C. §§ 1101, 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1996 to December 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. With regard to the psychiatric issue, while the Veteran's claim was initially characterized as entitlement to service connection for major depressive disorder, the United States Court of Appeals for Veterans Claims (Court) addressed the scope of claims generally in regard to what is claimed versus what should be addressed by VA. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons the Court explained that in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons, the Board has recharacterized the claim for major depressive disorder as entitlement to service connection for an acquired psychiatric disorder as stated on the title page of this decision and his appeal is perfected to the Board as to all psychiatric disorders. The Veteran testified before the undersigned Veterans Law Judge at a Board virtual hearing in July 2021. A transcript of this proceeding has been associated with the claims file. 1. Service connection for an acquired psychiatric disorder, to include major depressive disorder, is granted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 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). If a disorder was not "noted" on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the "increase in disability [was] due to the natural progress of the preexisting condition." 38 C.F.R. § 3.306 (2016); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. The Veteran contends that service connection is warranted for an acquired psychiatric disorder. Specifically, he contends that he was the victim of severe hazing during his service due to his weight, experienced the death of a friend in a motor vehicle accident during his service, and experienced the death of his grandfather during his service. The Veteran also contends he first began experiencing psychological problems during his service and has suffered psychological problems since his service. A June 1996 pre-enlistment examination shows a normal psychiatric system and in a June 1996 report of medical history, the Veteran denied "depression or excessive worry" and "nervous trouble of any sort." Service treatment records, however, include a June 1997 report of Medical Evaluation Board (MEB). This report shows that the Veteran came from an unstable background and had attempted suicide prior to his service in 1994. Significantly, this report shows that the Veteran's grandfather died during his military service and that this had sparked long term abandonment issues from his past. The Veteran was diagnosed with dysthymic disorder and the examiner noted this this disability both existed prior to the Veteran's military service and was aggravated by such service. Post-service treatment records show continued psychiatric problems as early as June 2008 when the Veteran attempted suicide by drug overdose due to severe depression with neurosis. These records also show additional psychiatric diagnoses including posttraumatic stress disorder (PTSD) in July 2015, persistent depressive disorder in October 2017, and schizoaffective disorder, depressive type, in January 2021. The Veteran submitted an initial claim for service connection for major depressive disorder in August 2016. In connection with this claim, he was afforded a VA psychiatric examination in November 2016. This examination report shows a diagnosis of major depressive disorder. The examiner noted that, during the current examination, the Veteran described significant symptoms of depression that he attributed to his military experiences. The examiner attempted to determine the Veteran's baseline depression, but his statements were not consistent with available records. For example, he said that "good" childhood and was primarily "happy" and he did not experience any significant problems. However, the Veteran's STRs indicate that he was abandoned at an orphanage by his biological mother at the age of one, his biological father was in prison for a serious offense as well as some concern that he was a danger to the children, and that the Veteran attempted suicide in 1994. These factors are not consistent with the positive upbringing that the Veteran described during the examination. The MBE from 1997 concluded that the Veteran suffered from dysthymic disorder that existed prior to the service and was aggravated by service. The Veteran was incarcerated from 2001 until 2005 and then from 2008 until 2016. According to the Veteran, he was treated for depression and PTSD while he was in prison (and he continues to take these medications). His time in prison and the related offense (and how the offense impacts his view of himself and functioning outside of prison) are significant factors that impact his current mood. For example, he describes significant feelings of hopelessness and negative self-worth that can be attributed to his current life situation and self-reflection related to his past crime. It is clearly documented that the Veteran experienced depression prior to the military, but the degree and functional impact of this depression cannot by fully understood due to a lack of information from the Veteran. It was documented that his depression was exacerbated while in the military, but he did not then seek any mental health care until he was incarcerated. His crime and approximately 12 years of incarceration and his current life circumstances significantly impact his current mood problems. Based on all of the information, it is less likely than not that the Veteran's depression was permanently aggravated beyond its normal progression by events that occurred in the military. In March 2017 correspondence, the Veteran denied a pre-service suicide attempt in 1994 and, in his June 2018 substantive appeal, he argued that there was no documentation that he experienced psychiatric problems during his military service and that VA had not rebutted the presumption of soundness. The Veteran reiterated these arguments during the July 2021 Board virtual hearing. Upon review of the above evidence, the Board finds that the evidence supports granting service connection for an acquired psychiatric disorder. As an initial matter, the Board notes that the Veteran has been diagnosed with an acquired psychiatric disorder during the appeal period. Furthermore, while there is no medical documentation showing that the Veteran was actually diagnosed with a psychiatric disability prior to the Veteran's military service, an acquired psychiatric disorder clearly and unmistakably pre-existed his military service. As above, the June 1997 MEB noted a diagnosis of dysthymic disorder and found this this disability existed prior to the Veteran's military service. Similarly, the November 2016 VA examiner opined that the Veteran's psychiatric disability pre-existed his military service. Moreover, the Veteran, understandably, experienced an increased in psychiatric symptoms during his military service due to his grandfather's death and the June 1997 MEB found that the Veteran's dysthymic disorder was aggravated by his military service. Thus, the Veteran's preexisting psychiatric disorder will be considered to have been aggravated by his service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. While the November 2016 VA examiner found that the Veteran's pre-existing psychiatric disorder was not aggravated by the Veteran's military service, the Board finds that this opinion is based on factual inaccuracy. Significantly, the November 2016 VA examiner found that the Veteran's depression was not exacerbated while in the military because he did not seek any mental health care while in service. However, the June 1997 MEB shows that the Veteran did, indeed, seek mental health care while in service. Instead, the Board will rely on the contemporaneous medical opinion in the June 1997 MEB finding that the Veteran's dysthymic disorder was aggravated by his military service. This opinion is contemporaneous in time and provides the underlying reasons for the medical conclusions reached. Therefore, the Board relies on it to grant service connection. In summary, the Board finds that the Veteran's acquired psychiatric disorder clearly and unmistakably pre-existed his service and was aggravated beyond the normal progression during his service. Accordingly, service connection for an acquired psychiatric disorder is warranted. 38 U.S.C. §§ 1110, 1111, 1153; 38 C.F.R. § 3.306. REASONS FOR REMAND 2. The claim of entitlement to service connection for a left foot disorder is remanded. The Veteran contends that service connection is warranted for a left foot disorder. Specifically, during the July 2021 Board hearing, he testified that he injured his left foot during "crucible" boot camp when he dropped a plank on his left foot. The Veteran further testified that he sought treatment for his left foot and was placed on light duty. Significantly, while the Veteran's service treatment records are negative for complaints regarding the left foot, they do show a right foot stress fracture of the 5th metatarsal in January 1997 and, in one of these records (also dated in January 1997), it was originally noted to be a left foot fracture but then changed to a right foot fracture. The Veteran contends that the injury was to the left foot, not the right, and that the service treatment records recorded the injury to the wrong foot. Regardless of whether the documented injury in the service treatment records was to the right foot or the left foot, the Veteran's September 1997 separation examination shows normal feet and in a September 1997 report of medical history, the Veteran specifically denied "foot trouble." Post-service private treatment records show some complaints regarding the feet. Specifically, an October 2019 private treatment record shows complaints of bilateral foot pain with an impression of superficial chemical burn of the right foot. More recent, a February 2021 private treatment record shows complaints of bilateral foot numbness. The Veteran has not yet been afforded a VA examination with regard to this issue. Given the above, the Veteran should be afforded a VA foot examination to determine whether he has a diagnosis of a left foot disorder, if so, whether it can be related to his military service. Also, the Veteran should be provided with an opportunity to identify any VA or non-VA healthcare provider who has treated him for his claimed left foot disorder. Significantly, there are likely outstanding treatment records as the most recent private treatment records are dated in May 2021 and there are no VA treatment records in the claims file. Therefore, all outstanding private and potential VA treatment records should be obtained on remand. The matter is REMANDED for the following action: 1. Afford the Veteran an opportunity to identify any healthcare provider who has treated him for his claimed left foot disorder since service. After obtaining any necessary authorization from the Veteran, obtain all identified records, to include any VA treatment records. 2. Schedule the Veteran for an appropriate VA examination to identify the current nature and etiology of his claimed left foot disorder. Based on the examination and review of the record, the examiner should provide opinions as to the following: (A) identify any and all left foot disorder(s). (B) as to each current left foot disorder, opine as to whether it is at least as likely not (50 percent probability or greater) caused by or is otherwise related to the Veteran's active duty service and explain why. Attention is invited to the following: the Veteran's July 2021 Board hearing testimony that he injured his left foot during "crucible" boot camp when a dropped a plank on his left foot, sought treatment for his left foot, and was placed on light duty; service treatment records showing a right foot stress fracture of the 5th metatarsal in January 1997 (but with followup treatment showing a notation of left foot at one point), along with the Veteran's assertions that this fracture pertained to the left foot, not the right; the Veteran's September 1997 separation examination showing normal feet and a September 1997 report of medical history wherein the Veteran specifically denied "foot trouble"; and post-service treatment records showing complaints of bilateral foot pain with an impression of superficial chemical burn of the right foot in October 2019 as well as complaints of bilateral foot numbness in February 2021. See VBMS, documents labeled Hearing Transcript, receipt date 7/8/2021, pages 2 and 3; STR Medical, receipt date 2/5/1998, pages 31, 33, 35, 38, 40, 44, and 46; Medical Treatment Record Non-Government Facility, receipt date 8/23/2021, page 25 and receipt date 9/1/2021, page 52. Note that even if the left foot injury is not documented in service treatment records, that fact alone is insufficient to find that it did not happen, or to find against a nexus. The lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.