Citation Nr: 21076876 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 12-21 356 DATE: December 28, 2021 ORDER Entitlement to service connection for Tourette's syndrome is granted. Entitlement to service connection for an acquired psychiatric disorder, to include obsessive compulsive disorder (OCD) and adjustment disorder with mixed anxiety and depressed mood, is granted. FINDINGS OF FACT 1. The Veteran's Tourette's syndrome clearly and unmistakably preexisted service. 2. The evidence does not show that Tourette's syndrome was not clearly and unmistakably not aggravated by active service. 3. The Veteran's OCD and adjustment disorder are related to physical attacks and harassment that occurred during service. CONCLUSIONS OF LAW 1. The criteria for service connection for Tourette's syndrome are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for OCD and adjustment disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Air Force with active duty service from April 1972 to February 1974. He also served in the Ohio Air National Guard from February 1974 to June 1978. These matters come to the Board of Veterans' Appeals (Board) from a July 2009 rating decision issued by the Agency of Original Jurisdiction (AOJ). In March 2021, the Board remanded the appeal for new medical opinions, which were obtained in April and September 2021. The case was then returned to the Board in November 2021. 1. Entitlement to service connection for Tourette's syndrome. The Veteran contends that, even though his Tourette's syndrome may have preexisted service, it was aggravated by his active service. See Transcript dated September 2013 at 3. The questions for the Board are whether there is clear and unmistakable evidence the Veteran's Tourette's syndrome preexisted service and, if so, was not aggravated by his service. If the answer to either question is no, the Veteran can establish entitlement to service connection on a direct basis. The Board concludes it is undebatable the Veteran's Tourette's syndrome preexisted service, but the evidence supports finding it was aggravated by his service; therefore, the Veteran has established entitlement to service connection. A Veteran is presumed to have been sound upon entry into active service, except for any defects noted at the time of examination for entry into service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). This statutory provision is known as the "presumption of soundness." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). If the presumption of soundness applies, it may be overcome by the VA by showing clear and unmistakable evidence that shows (1) an injury or disease was both preexisting and (2) not aggravated by service. See 38 U.S.C. § 1111. Rebutting the presumption of soundness is difficult, as clear, and unmistakable evidence means evidence that "cannot be misinterpreted and misunderstood; that is, it is 'undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). If the presumption of soundness applies and VA fails to show by clear and unmistakable evidence that the preexisting condition was not aggravated by active service, then the presumption has not been rebutted. In that case, the Veteran's claim is one of direct service connection. Horn, 25 Vet. App. at 236-37; Wagner, 370 F.3d at 1096. Entitlement to service connection on a direct basis requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (2007). In order to prevail on a claim for benefits, the Veteran need only demonstrate there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). This is because the Veteran is entitled to the "benefit of the doubt" when the evidence is approximately balanced. Id. at 53. Evidence on an issue is in "approximate balance" when the evidence for and against a finding on that issue is "almost exactly or nearly equal" or "too close to call." Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001). Beginning with the Veteran's earliest recollections of involuntary muscle movements he describes as "tics," he manifested twitching, jerking movements, spasms, and fidgeting his arms side to side, when he was in junior high school. See May 2009 Statement from M.L (reports the Veteran exhibited tics as a child); December 2019 VA Disability Benefits Questionnaire (DBQ) at 4 (reports tics started in junior high school); Transcript dated September 2013 at 5 (reported Tourette's syndrome began during childhood). His mother took him to a medical professional for an evaluation, but the professional did not view the Veteran's symptoms as part of a medical disorder. His mother was told the Veteran would outgrow the symptoms, which did not occur. See May 2009 Statement from Mother. The Board notes, the Veteran's symptoms have been retrospectively found to be symptoms to Tourette's syndrome, which was not a diagnosable disorder during the time the Veteran was a child. See December 1986 Letter from C.C., MD (concludes the Veteran had Tourette's since age 11); September 2021 VA Medical Opinion by J.F., MD, at 7 (noting Tourette's syndrome was not a disorder listed in the DSM until the 1980s). In April 1972, the Veteran entered the Air Force. The military doctor who conducted his entrance examination did not mention behaviors the Veteran has described as tics. See March 1972 Report of Medical Examination. Nor did the Veteran report them. See March 1972 Report of Medical History. But he continued to exhibit tics in basic training, to include the additional symptom of head jerks. See Transcript dated September 2013 at 14. The Veteran's behaviors led to harassment by other recruits, to include name-calling, like spastic, snap back, and jerk face. Id. at 14. Due to his involuntary tics, he had problems maintaining the kind of military bearing his drill instructors desired, like maintaining a rigid posture while standing at attention. His tics were apparent to his drill instructor when performing drills requiring his class of recruits to move in unison, like marching in formation. Because his behaviors disrupted the appearance of synchronous movement, he got singled out by the drill instructors. Initially, the negative attention was directed at him. But eventually his class of recruits started to get punished for his behavior. That led to greater harassment from other recruits, to include two occasions some of the recruits physically attacked him. Id. at 6, 7. The attacks occurred at night and out of sight of the instructors who were tasked with supervising him. Due to the harassment and physical attacks, the Veteran became hypervigilant and developed problems sleeping while in basic training. He also noticed a compulsion to avoid cracks on the sidewalk. Without thinking, he would skip over the cracks when marching in formation. See July 2009 Statement; September 2021 VA DBQ at 2, 7. A medical appointment was scheduled to consult with a service medical provider about his behavior, but the drill instructors did not ensure he made it to the appointment; instead, they told him to have the matter addressed when he got to his permanent duty station. See July 2009 Statement at 1. Following basic training, he was provided additional schooling to work in the field of aviation electronics; he did not graduate the training program due to problems attributed to his Tourette's syndrome. Id. His symptoms, to include involuntary noises, disrupted the classroom portion of his instruction. In response, the instructors would remove him from the classroom. This contributed to poor academic performance and, eventually, his inability to meet the academic requirements to graduate the program. So, he was assigned a new military occupation as an aircraft mechanic. Although he continued to exhibit tics and make involuntary noises, the instructors were able to work with him and help him graduate the aircraft mechanic program. Upon reaching his first duty station, he was sent on temporary orders to Thailand. Shortly after getting there, he passed out in the dining facility and was separated from service. Id. at 2. His February 1974 separation examination does not reference tics or involuntary movements. Nor does it reference any psychiatric disorder. See February 1974 Report of Medical Examination at 2; February 1974 Report of Medical History at 1. The Veteran served in the Ohio Air National Guard from February 1974 through June 1978. His medical records associated with this service do not reference tics, Tourette's syndrome, nor any psychiatric disorder. See May 1978 Annual Certificate. The Veteran reported he was taking medication around that time, which was successful at reducing the occurrence of his Tourette's symptoms. See July 2009 Statement at 2. But the medications also made him lethargic and feel like a zombie, so he was eventually taken off the medication(s). Without the help he got from medication, his Tourette's symptoms returned. Id. Following service in the Ohio Air National Guard, the Veteran met with G.M.H., MD, a private provider. See March 1981 Private Medical Record at 1. The Veteran informed Dr. G.M.H. of his childhood symptoms, to include uncontrollable blinking, patting of his hips with his hands, and echolalia. He also reported, some of those symptoms persisted since childhood, to include uncontrollable eye blinking, echolalia. Dr. G.M.H. suspected Tourette's syndrome but recommended additional brain scans and diagnostic testing. The Veteran reported similar symptoms to C.C., MD, another private provider, who concluded the Veteran has had Tourette's syndrome since the age of 11. See December 1986 Letter from C.C., MD. In September 2013, a Board hearing was conducted for the Veteran's entitlement claims. Beginning with his service connection claim for Tourette's syndrome, he asserted his disorder preexisted service. He could recall demonstrating behaviors as a child that he knew were not normal, like tics. See Transcript at 5. He also remembered his mother indicated to him he had been demonstrating behaviors that were different from the children around him. Given that she was not a medical professional, she did not indicate to him whether his behaviors were attributable to a medical disorder. Id. at 4. The Veteran added that the behaviors he observed as a child, like tics, continued through service. He tried to control his tics without success; instead, his symptoms got worse. He reported he was harassed, physically attacked, and found himself isolated from others, like getting assigned duties that had him working evenings and overnight shifts. Id. at 12. He did not associate his behavior with Tourette's syndrome until he left service, when he was first diagnosed with the disorder (in 1981). Id. at 13. Now, he observes involuntary movements at his hands, toes, and face. He noticed his head jerks have subsided. Id. at 10. Regarding the Veteran's service connection claim for an acquired psychiatric disorder, he started observing symptoms of a psychiatric disorder during basic training, which is the same time other soldiers started calling him names and attacked him. Now, he observes signs of depression, difficulty sleeping, and hypervigilance. Id. at 8, 9. Following a Board remand, the Veteran underwent a VA examination of his Tourette's syndrome in November 2015. He reiterated he observed tics as a child and they progressively worsened with age. See November 2015 VA DBQ at 1. The examiner noted the diagnoses of Tourette's syndrome. The examiner also concluded the Veteran's history of tics provides clear and unmistakable evidence it preexisted service, but was not aggravated by service. The examiner asserted the symptomatology in the record is consistent with the normal progression of the disease. See March 2016 VA Medical Opinion. The examiner did not provide details of the normal progression of the disease which the Board could compare to the lay descriptions in the claims file. Following another Board remand, the VA obtained a December 2019 VA examination for Tourette's syndrome. The Veteran reported he observed fewer head jerks but continues to make noises with his mouth, pops his lips, blinks his eyes, and grimaces. See VA DBQ at 4. The examiner noted the diagnoses of Tourette's syndrome and opined it is less likely than not related to service. The examiner based the opinion on the absence of references to Tourette's syndrome in the Veteran's service medical records. See December 2019 VA Medical Opinion by D.P., NP. A different VA examiner provided a December 2019 medical opinion that concluded the Veteran's Tourette's syndrome more likely than not preexisted service but based on the record, could not determine if it was aggravated during service. See December 2019 VA Medical Opinions by N.D., PhD. The examiner explained that, generally, Tourette's syndrome can worsen over time, but she did not see documented evidence showing aggravation beyond its natural progression. Id. The Board notes the two opinions were found to be inadequate because they did not consider the Veteran's lay reports of his disorder. See May 2020 Board Remand. The VA obtained another medical opinion on the Veteran's Tourette's disorder in November 2020. In that opinion, the VA examiner concluded the Veteran's Tourette's syndrome preexisted service but was not aggravated by his active service. The examiner referenced scientific data indicating the disorder can get better, or worse, with age. For reasons not explained, the examiner appeared to conclude the Veteran's disorder would have impacted his academic and job performance. She explained the Veteran received good performance evaluations and, therefore, the record indicates Tourette's syndrome was not aggravated during service. See November 2020 VA Medical Opinion at 5, 6. The Board found this VA medical opinion inadequate because it applied the "as likely as not standard" when evaluating aggravation of a preexisting disability rather than the required clear and unmistakable standard. See March 2021 Board Remand. Recently, in April 2021, the VA obtained another medical opinion discussing the Veteran's Tourette's syndrome. The VA examiner who prepared the opinion concluded the Veteran's Tourette's syndrome did not preexist service. The examiner based her opinion on the absence of medical records noting Tourette's syndrome began before the Veteran entered service. Similarly, the examiner concluded Tourette's syndrome was not aggravated during service because the Veteran's service medical records did not reference medical complaints that related to signs, symptoms of the disorder. See VA Medical Opinion at 5. In September 2021, the Veteran underwent a VA disability examination for acquired psychiatric disorders. He reported he did not get mental health treatment until several years after leaving the Ohio National Guard. Now, he continues to observe a tendency to avoid cracks on the sidewalk. He also observes nightmares about the physical attacks and harassment he received during service. He also disclosed he had been admitted for inpatient psychiatric treatment several times between 2004 and 2006. See VA DBQ at 7. The examiner noted the diagnoses of Tourette's syndrome; adjustment disorder with mixed anxiety and depressed mood, chronic; and OCD. He could not differentiate all the symptoms attributable to each disorder because they occurred at the same time and share overlapping symptoms. Id. at 1-2. Then, the examiner concluded the Veteran's adjustment disorder with mixed anxiety and depressed mood, OCD, is due to certain in-service stressors, to include physical attacks in basic training. The examiner explained those events are likely to trigger an anxiety disorder and OCD, which were shown in service. See September 2021 VA Medical Opinion at 3. The examiner also concluded the Veteran's Tourette's syndrome preexisted service and was aggravated by service. The examiner explained that the Veteran's childhood symptoms are consistent with the diagnosis of Tourette's syndrome. Id. at 7. Also, Tourette's syndrome was not a diagnosable disorder until about 1980, which explains why the Veteran may not have been diagnosed during his March 1972 entrance examination. The examiner added that the stressors described by the Veteran, like physical attacks during basic training, are likely to exacerbate Tourette's. Id. A. The Veteran's Tourette's syndrome preexisted service. Turning to the Veteran's claim for disability compensation, the Board finds the Veteran's Tourette's syndrome clearly and unmistakably preexisted service. Although the VA obtained medical opinions do not expresses the level of certainty required to rebut the presumptions of soundness, there is ample lay and medical evidence that shows the disorder clearly and unmistakably preexisted service. First, the Board has been informed Tourette's syndrome was not a diagnosable disorder when the Veteran entered service; so, there is a reasonable explanation why references to the disorder are not found in his service records. See September 2021 VA Medical Opinion (noting Tourette's was not found in the DSM until the 1980s). Second, the Veteran has asserted Tourette's syndrome preexisted service. He has personal knowledge of involuntary movements he identifies as "tics," like involuntary blinking, arms fidgeting side to side; so, he is competent to report them. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, he has consistently informed every medical provider he consulted about the matter that his tics preexisted service. Given that reports to medical providers are generally found reliable, the Board finds his statements highly probative towards finding he observed tics before entering service. Third, there is ample lay and medical evidence that supports the Veteran's assertion his Tourette's syndrome preexisted service. Considering the Veteran's reports of tics were observed by others, the Board has no doubt the Veteran manifested involuntary muscle movements as a child. See March 1981 Private Medical Record by Dr. G.M.H at 1 (Veteran reported he observed uncontrollable head jerks, eye blinking, patting of the hips with the hands and echolalia, since age 11); December 1986 Letter from Dr. C.C.; (Veteran reported involuntary twitching, head jerking, hand jerking and occasional echolalia since age 11); December 2019 VA DBQ at 4 (Veteran reported he observed tics as a child and they progressively worsened with age); Veteran reported he observed tics as a child, to include included fidgeting his arms side to side and making noises in his throat); May 2009 Statement from M.L (neighbor, reported the Veteran exhibit twitching and jerking movements as a teenager); May 2009 statement from Mother (reported she observed the Veteran display tics, jerks, and spasms when he was a child). Even though the Veteran has not alleged he possesses the qualification to diagnose his childhood tics as symptoms of Tourette's syndrome, most of the medical providers who evaluated the record agree the Veteran's tics are manifestations of that disorder. The consensus among multiple medical professionals leaves no doubt that the Veteran's reports he observed signs of Tourette's syndrome before entering service are reliable. See March 1981 Private Medical Record by Dr. G.M.H. at 1 (opines the Veteran had Tourette's but recommended additional testing); December 1986 Letter from Dr. C.C (opines the Veteran had Tourette's since age 11); March 2016 VA Medical Opinion (opines the Veteran's Tourette's clearly and unmistakably preexisted service); December 2019 VA Medical Opinion by N.D., PhD (opines the Veteran's Tourette's more likely than no preexisted service); December 2019 VA Medical Opinion by D.P., NP (opines Veteran's Tourette's as likely as not preexisted service); November 2020 VA Medical Opinion (opines the Veteran's Tourette's as likely as not preexisted service); April 2021 VA Medical Opinion (opined it is less likely than not that Veteran's Tourette's preexisted service); September 2021 VA Medical Opinion (opined it is more likely than not that the Veteran's Tourette's syndrome preexisted service). In this case, the Board finds there is clear and unmistakable evidence Tourette's syndrome preexisted service even though his entrance examination does not note the presence of the disorder. There is a reasonable explanation why references to the disorder are not found in his service records. Second, the Veteran has asserted Tourette's syndrome preexisted service, which is supported by lay and medical evidence in the record. So, the Veteran's own statements demonstrate his disability clearly and unmistakably preexisted service. Doran v. Brown, 6 Vet. App. 283, 286 (1994). B. The claims file does not provide clear and unmistakable evidence showing Tourette's syndrome was not aggravated by active service. After reviewing the record, the Board finds there is enough lay and medical evidence in the record to conclude his disorder increased in severity during service; therefore, the presumption of soundness has not been rebutted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The lay evidence of record weighs in favor of finding aggravation. The Veteran reported observing new symptoms of Tourette's syndrome following his entry into service, like the appearance of head jerks during basic training. See Transcript dated September 2013 at 14. An increase in the severity of his symptoms was also observed by his mother, who reports his childhood symptoms appeared to worsen during active service. See May 2009 Statement. They are competent and credible to report those observations; so, the Board finds their statements probative towards a finding of aggravation. Layno, 6 Vet. App. at 469. The medical opinions in the claims file were not informative enough for the Board to conclude the Veteran and his mother saw nothing more than the natural progress of Tourette's syndrome. First, none of the medical opinions provide the level of certainty required to rebut the presumption of soundness. Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993) (holding that anything less than absolute certainty in a medical opinion was not sufficient to constitute clear and unmistakable evidence to rebut VA's presumption of soundness). Second, the medical opinions inform the Board that Tourette's syndrome can get better or worse with age. This does not provide enough information for the Board to conclude the symptoms the Veteran observed during service, like the appearance of head jerks, is part of the natural progress of the disorder. See November 2020 VA Medical Opinion at 1 (citing medical studies indicating Tourette's syndrome improves with age in some people and worsens with age with other people). Without more, the Board is unable to find it is undebatable the Veteran's disorder was not aggravated by his active service; so, the presumption of soundness has not been rebutted. Accordingly, the claim becomes one of direct service connection. Horn, 25 Vet. App. at 236-37; Wagner, 370 F.3d at 1096. C. The Veteran has established entitlement to service connection for Tourette's syndrome on a direct basis. Now that the Board has determined the presumption of soundness is not rebutted and this claim is one of direct service connection, the question is whether there is a causal connection (nexus) between the disability and an in-service injury. Holton, 557 F.3d at 1367. On that matter, the September 2021 Medical Opinion weighs in favor of finding a nexus. The examiner expressed the harassment and physical attacks described by the Veteran are likely to aggravate Tourette's syndrome. See Medical Opinion at 7. Given that the Veteran has provided competent and credible reports his disorder worsened during service, the Board finds a nexus has been established. The Board recognizes several other VA medical opinions noted the Veteran's disorder was not impacted by his active service; however, those opinions did not consider all the evidence of record. Or they based the decision on the absence of medical evidence referencing the Tourette's syndrome. For example, the examiner who prepared the November 2020 VA Medical Opinion concluded the Veteran's disorder did not negatively impact his performance during service. She did not discuss the Veteran's poor academic performance for his intended military occupational specialty. Nievez-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2006). As another example, the examiner who prepared the April 2021 VA Medical Opinion overlooked the Veteran's lay statements when concluding the record did not show evidence of Tourette's syndrome. See Medical Opinion at 5. Given that the record reflects the Veteran has Tourette's syndrome, there were in-service manifestations of the disorder during service, and medical evidence supporting a nexus between themthe Veteran has established entitlement to service connection on a direct basis. Accordingly, service connection is granted for Tourette's syndrome. 38 C.F.R. § 3.303. 2. Entitlement to service connection for an acquired psychiatric disorder, to include OCD and adjustment disorder. The question for the Board is whether there is sufficient evidence to find one or more of the Veteran's psychiatric disorders, to include OCD and adjustment disorder are related to his service. For the reasons discussed below, the Board concludes both disorders are directly related to his active service. The Veteran has provided competent and credible evidence that he was physically attacked and harassed during service due to symptoms of his Tourette's syndrome. See July 2009 Statement at 1 (reporting he was attacked by other recruits one two occasions while in basic training and harassed by instructors during AIT); Transcript dated September 2013 at 6, 7 (asserting he was attacked by other recruits during basic training); September 2021 VA DBQ at 7 (reported he was harassed and attacked during service, to include to two physical attacks by a group of recruits during basic training). The lack of reference to physical attacks in his service records does not diminish the probative value of his statements as he has indicated they occurred out of sight of persons responsible for the Veteran's safety; specifically, his drill instructors. Also, considering his drill instructors did not help him attend his medical consultation to assess his tics, the Board finds he has provided a reasonable explanation why medical complaints noting some of the alleged events are not in the record. With regards to the actual occurrence of the alleged events, to include the physical attacks during basic training, the Board finds the weight of the evidence is sufficient to resolve doubt in the Veteran's favor. Gilbert, 1 Vet. App. at 54. So, the Board finds the attacks and harassment constitute in-service injuries. The September 2021 VA Medical Opinion provides medical evidence that links the Veteran's in-service injuries to his diagnosed psychiatric disorders. The examiner who prepared the opinion explained the attacks and harassment the Veteran experienced led to the development of his psychiatric disorders. See VA Medical Opinion at 3. Given that the examiner established a causal connection between certain in-service events and psychiatric disorders, the opinion weighs in favor of finding OCD and adjustment disorder are directly related to service. The Board recognizes several other VA medical opinions have noted the Veteran's psychiatric disorders are not related to service or secondary to (now service-connected) Tourette's syndrome; however, the Board finds each of those opinions has one or more defects that render them less probative than the September 2021 opinion. The VA medical opinions obtained in December 2019 and October 2020 did not consider the Veteran's lay statements; so, they were found inadequate. See May 2020 Board Remand at 4; March 2021 Board remand at 4. Given that the favorable (September 2021) opinion outweighs the unfavorable ones, the evidence weighs in favor of finding a nexus. Given that the record reflects the Veteran has psychiatric disorders and medical evidence that links certain events to the development of those disordersthe Veteran has established entitlement to service connection on a direct basis. Accordingly, service connection is granted for his diagnosed OCD, adjustment disorder with mixed anxiety and depressed mood, chronic. 38 C.F.R. § 3.303. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dean, Michael S. 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.