Citation Nr: 21075841 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 12-31 391 DATE: December 21, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), including schizoaffective disorder, is granted. FINDING OF FACT The Veteran's acquired psychiatric disorder clearly and unmistakably preexisted his military service, but the evidence is in relative balance (equipoise) concerning whether his service worsened it beyond its natural progression. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for his entitlement to service connection for an acquired psychiatric disorder other than PTSD, including for schizoaffective disorder. 38 U.S.C. §§ 1110, 1111, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from February 1993 to May 1993. In an October 2020 decision, the Board denied claims for service connection for an acquired psychiatric disorder other than PTSD and a traumatic brain injury (TBI). The Veteran appealed the denial of these claims to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC), but he subsequently withdrew his appeal for service connection for a TBI. The Court, therefore, dismissed the appeal of that claim. But, in granting an August 2021 Joint Motion for Partial Remand (JMPR), the CAVC vacated the Board's decision denying the claim for service connection for an acquired psychiatric disorder other than PTSD and remanded this claim back to the Board for further proceedings consistent with the JMPR. Specifically, the CAVC concluded the Board had failed to address a favorable January 2020 VA psychiatric note opinion that the Veteran's psychosis was aggravated by his service. This claim, therefore, is again before this Board for readjudication consistent with the terms of the CAVC granted JMPR. And, as will be discussed, the Board finds that the evidence is in relative equipoise as to whether the Veteran's acquired psychiatric disorder even though preexisting his service, was aggravated by his service; therefore, service connection is being granted for this claimed condition. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability, (2) in-service incurrence or aggravation of a relevant injury or disease, and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For purposes of establishing service connection, 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, 1153; 38 C.F.R. § 3.304(b). According to 38 C.F.R. § 3.304(b), the term "noted" denotes only such conditions that are recorded in examination reports. A mere history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. See Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence.") It is an "onerous" evidentiary standard, requiring that the pre-existence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). If, on the other hand, a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability. And, in that circumstance, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The provisions of 38 U.S.C. § 1153, and its implementing VA regulation, 38 C.F.R. § 3.306, provide criteria for determining when a pre-existing disability has been aggravated. According to this statute and regulation, a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Concerning this, mere 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, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and after service. See Falzone v. Brown, 8 Vet. App. 398, 402 (1995); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). Here, the Board finds that the medical evidence of record, including the report of an April 2017 VA examination and the Veteran's service treatment records (STRs), are persuasive evidence that his acquired psychiatric disorder clearly and unmistakably predated his service. See Gahman v. West, 12 Vet. App. 406 (1999). The question thus becomes whether the Veteran's pre-existing acquired psychiatric disorder was clearly and unmistakably not aggravated during or by his service. After this additional review of the record, and when considering the January 2020 VA psychiatric note opinion cited in the JMPR, the Board finds that the probative (competent and credible) evidence is in relative equipoise as to whether the Veteran's acquired psychiatric disorder was aggravated by his service. A June 2012 VA examiner opined that it was less likely than not that the Veteran's schizophrenia, paranoid type, is related to service because he had an extensive psychiatric history prior to the military including three inpatient hospitalizations. In an addendum medical opinion, this examiner reaffirmed his determination that the Veteran's acquired psychiatric disorder was not caused by his service but conceded that he could not answer whether this condition was made worse by the Veteran's service (i.e., aggravated) without resorting to mere speculation because the record was insufficiently detailed to make this determination. In February 2017, the Board concluded that the June 2012 VA examiner had failed to address whether the Veteran's acquired psychiatric disorder had clearly and unmistakably preexisted his service and whether it clearly and unmistakably was not aggravated by his service and, therefore, remanded this claim back to the RO (Agency of Original Jurisdiction (AOJ)) for a VA examination to obtain this needed supplemental medical comment. The Veteran consequently was afforded a new VA examination. In an April 2017 opinion, this VA psychologist noted that the Veteran's paranoid schizophrenia clearly and unmistakably existed prior to his service and clearly and unmistakably was not aggravated by his service. The rationale for this opinion was based on a review of the claims file, which, according to this examiner, showed the Veteran had been hospitalized for paranoid schizophrenia prior to his entry into service and was hospitalized during basic training when he stopped taking his medication for this condition. "His behavior stabilized once his medication was re-started." This clinician also explained that the Veteran's decompensation in service in his psychiatric symptoms "was considered to be part of the natural progression of the condition." However, in making this determination, this VA examiner seemingly disregarded the Veteran's additional psychiatric hospitalization in September 1993, just 4 months after separating from service, with additional long-term treatment in 1994 and another hospitalization in 1995. Prior to entering service in 1993, his most recent hospitalization was in 1988. See Social Security Administration (SSA) Records. On the contrary, the January 2020 VA psychiatry note cited in the JMPR indicates that any stressors experienced in the service would have exacerbated PTSD, as well as any psychosis. Schizophrenia is a type of psychosis according to 38 C.F.R. § 3.384. It is the increase in symptoms that occurred in service that were a direct result of the Veteran's experience in service, as such, it is more likely than not that his military experience exacerbated his psychosis and PTSD. 38 C.F.R. § 3.306(b) requires clear and unmistakable evidence also to rebut the presumption of aggravation. And here, when considering all probative evidence of record, the Board finds it to be in relative balance (equipoise), if not more favorable to the claim, concerning whether the Veteran's pre-existing disorder increased in severity during his service beyond its natural progression for the requisite finding of aggravation of this preexisting condition. See Falzone, supra. Thus, giving him the benefit of the doubt, and because there is no clear and unmistakable evidence that any in-service progression of his disorder was due solely to the natural progression of it, the presumption of aggravation has not been overcome, and aggravation is presumed. 38 C.F.R. § 3.306(b). Therefore, the Board resolves all reasonable doubt in his favor and concludes that service connection is warranted for his acquired psychiatric disorder based on of aggravation of a pre-existing condition. 38 C.F.R. § 3.306. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.