Citation Nr: 21005781 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-58 694A DATE: February 2, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability to include depression/anxiety is denied. FINDING OF FACT The Veteran’s acquired psychiatric disability was noted at entrance to service and preexisted service; it was not aggravated during service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability to include depression/anxiety have not been met. 38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.304, 3.306 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1977 to February 1980. In July 2018, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans Appeals (BVA) in March 2019 and April 2020 for additional development. It now returns for further appellate review. 1. Service connection The Veteran seeks service connection for an acquired psychiatric disability, which he contends is related to his active service. See November 2012 Notice of Disagreement (NOD). Legal Criteria Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). If a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing “that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. Relevant facts During the January 1977 entrance examination, the Veteran had a normal clinical psychological evaluation. However, in his Report of Medical History he reported, inter alia, that he had depression or excessive worry. See January 1977 Report of Medical History, Service Treatment Records (STRs) - Medical. The physician noted mild anxiety. He was deemed qualified for service. Based on his January 1977 report of depression or excessive worry, the Veteran was evaluated by a military medical officer in June 1978. See June 1978 Clinical Record in STR-Medical. The Veteran stated that he endorsed excessive worry and/or nervousness because his grandmother had passed away shortly prior to entrance into service, and he had other concerns including his fiancé, and ailing grandfather. The examination revealed clear thought process, and there was no evidence of psychosis or depression. The medical officer found the Veteran fit for active duty. Id. During the February 1980 separation examination, the Veteran endorsed symptoms of excessive worry and/or nervousness. See February 1980 Report of Medical History, STR-Medical. However, the psychiatric evaluation was clinically normal at the separation examination. See February 1980, Report of Medical Examination, STR-Medical. The Veteran’s STRs were otherwise silent for Veteran complaint or treatment for any psychiatric symptoms. Following active service, the earliest psychiatric treatment record in the claims file is from 1992, when the Veteran complained of bad nerves due to family problems and was assessed with anxiety and depression. See August 1992 Kaiser Permanente Private Treatment Record. In January 1998, the Veteran was admitted for three-day in-patient psychiatric care due to severe depression and suicidal ideation. See January 1998 Saint Thomas Private Hospital Discharge Summary. He was assessed with recurrent major depression and chronic alcohol dependence and withdrawal. Id. During the March 2012 VA examination, the Veteran was assessed with mood disorder not otherwise specified (NOS). See March 2012 VA Mental Disorders Disability Benefits Questionnaire (DBQ). The Veteran denied any psychiatric treatment prior to active service and denied suicide ideation during active service. He reported he was hospitalized for psychiatric treatment following active service in 1994. He also stated that since his inpatient treatment, Dr. C.C.P. prescribed him psychotropic medications. Id. The VA examiner opined that the Veteran’s acquired psychiatric disability clearly and unmistakably preexisted service based on the Veteran’s report of anxiety and depression prior to service during his January 1977 entrance examination. Id. The Veteran reported problems interacting with a lieutenant, the ship was hit while he was onboard during active service. However, the Veteran reported his current depression did not relate to military instead was related to work problems, mother-in-law’s poor health, and father-in-law’s death. Id. Accordingly, the examiner opined that the Veteran’s acquired psychiatric disability was clearly and unmistakably not aggravated beyond the natural progression by active service. Id. In a letter dated September 2012, the Veteran’s private psychiatrist Dr. C.C.P. indicated that he has known the Veteran dating back to the 1970s as an employee at Fallview Psychiatric Hospital. See September 2012 Letter from Dr. C.C.P. He also noted that he has treated the Veteran for affective disorder, bipolar in nature. Regarding, his active service, the Veteran reported he managed his depression with alcohol use and weightlifting. The Veteran further stated he experienced trauma while in service from being on a battleship. Id. Dr. C.C.P. assessed the Veteran with bipolar affective disorder based on “the long history this patient gives from his early 20s and the method of coping and self-medication and the cyclical nature of his moods.” Id. In November 2012, the Veteran asserted that he had depression and “was still accepted into [the] armed services.” See NOD. He further stated, “before I left the service [] I was having [a]nxiety problems which cause my depression to get worse[] during my tour of duty.” Id. In December 2016, the Veteran also submitted evidence to corroborate the in-service ship crash with an oil tanker in the form of ship history report for USS Ranger CV 61, which confirms the ship was involved in a collision in February 1979. See December 2016 Correspondence. In an undated statement received in December 2017, the Veteran described his psychiatric history. See December 2017 Correspondence. He stated he had depression when he entered active service due to leaving his girlfriend. Id. He also reported traumatic events during service including almost drowning, having a gun put to his head by another service-member, ship fires, and an accident with ship and oil tanker. Id. He also stated he experienced depression and anxiety and self-medicated with alcohol. He also asserted that he had nightmares, night sweats, and waking up choking due to dreams of drowning or being shot. Id. Similarly, the Veteran testified in July 2018, that he was depressed at the time of enlistment because he was leaving his girlfriend. See Hearing Transcript. He also reported traumatic events during service including the ship crash while he was onboard, and that a service member put a gun to his head. Id. In March 2019, the Board remanded the claim for a new medical opinion due to the conflicting evidence regarding whether the Veteran’s acquired psychiatric disability was noted at entrance or pre-existed service by clear and unmistakable evidence. Accordingly, the VA obtained a new VA examination and medical opinion in January 2020. The VA examiner opined that the Veteran’s acquired psychiatric disability clearly and unmistakably pre-existed service and indicated that the Veteran had a long history of anxiety and depression. See January 2020 VA Medical Opinion Disability Benefits Questionnaire (DBQ). In the April 2020 Board remand, the Board found that the January 2020 VA medical opinion did not comply with the March 2019 Board remand because the VA examiner did not address normal clinical psychological findings during entrance examination, and remanded the claim pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998) (A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders.) Consequently, the claim was remanded in April 2020 for a new medical opinion. See April 2020 Board Remand. Pursuant to the April 2020 Board remand, VA obtained a third medical opinion in August 2020. See August 2020 VA Medical Opinion DBQ. The VA examiner stated that she concurred with the prior March 2012 and January 2020 VA medical opinions. She opined that the Veteran’s acquired psychiatric disability clearly and unmistakably preexisted service. Specifically, she stated “[t]he 1977 Report of medical exam signed by a physician noted mild anxiety. This was supported by enlistee’s own report of depression and excessive worry.” She further asserted that “the 1978 senior medical officer note which indicated he had an anxiety reaction shortly prior to service when his grandmother passed away.” Id. The examiner also stated that the Veteran “freely admitted that none of his current mental health concerns had any nexus to service and they were in fact related to post service, contemporaneous stressors.” Id. The August 2020 VA examiner also opined that the Veteran’s preexisting acquired psychiatric disability was not clearly and unmistakably aggravated by active service. See August 2020 VA Medical Opinion DBQ. She agreed with the opinions of the March 2012 and January 2020 VA examiners that there was no in-service aggravation because the Veteran did not complain or receive treatment for psychiatric symptoms during service. The August 2020 VA examiner also opined that the Veteran’s acquired psychiatric disability was less likely than not caused or aggravated by his any-service connected disability. See August 2020 VA Medical Opinion DBQ. In her rationale, she stated that the Veteran’s current statements were refuted by his prior lay statements. She also asserted that there is “no contemporaneous documented evidence to support any of his current claimed traumas.” She reiterated that the Veteran reported in 2012 and 2015 that his current psychiatric symptoms were unrelated to active service. She also questioned the veracity of the Veteran’s statements regarding his in-service stressors to support of his claim “which he previously stated did not bother him.” Id. The claims file includes several lay statements from the Veteran and his family. In a statement dated October 2011, the Veteran’s wife Mrs. P.C.-D. stated that she has known the Veteran since 1982 and that they have been married for 16 years. See Lay/Buddy Statement form Mrs. P.C.-D. She also witnessed the Veteran’s “bouts of depression… evidenced by melancholy, mood swings, and poor sleep patterns.” Id. In a January 2020 statement, the Veteran’s daughter Ms. M.D. stated she witnessed the Veteran’s psychiatric symptoms and the effect it had on the Veteran. See January 2020 Statement from Ms. M.D. In February 2020, the Veteran’s siblings also provided lay statement asserting that the Veteran did not have anxiety or depression as a child. See Buddy/lay statement from Ms. L.D.; Buddy/lay statement from Mr. R.D. In a letter dated August 2020, the Veteran addressed the August 2020 VA medical opinion. See August 2020 Correspondence. The Veteran noted that he provided several lay statements from family that assert he did not have depression prior to active service. He also stated he provided evidence to corroborate his in-service stressors including the USS Ranger collision. Id. The Veteran’s representative argued in its October 2020 appellate brief that the August 2020 VA examiner provided an improper medical opinion when she questioned the Veteran’s veracity. See October 2020 Appellate Brief. His representative also asserted that the Veteran “has given ample statements of sincere distressing events that are known to be common aboard ships that would undoubtedly aggravate any pre service [sic] mental health conditions.” Id. Analysis As an initial matter, the evidence of record demonstrates that the Veteran has satisfied the first element of service connection, because the Veteran has been diagnosed with acquired psychiatric disability including mood disorder NOS. See i.e., March 2012 VA Mental Disorders DBQ. He was also diagnosed with depression. See March 2018 VA Psychiatry Note in CAPRI received March 2018. However, as to the second element of service connection, this has not been established. The Veteran was evaluated upon entry into service in January 1977, at which time the military physician noted that he had mild anxiety prior to active service. See January 1977 Report of Medical History, STR-Medical. The Veteran also endorsed symptoms of excessive worry and nervousness in the January 1977 Report of Medical History. Given such, the Veteran’s acquired psychiatric disability is considered noted and preexisting, and thus, he is not entitled to the presumption of soundness. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held that if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id.; see also 38 C.F.R. § 3.306(b). Here, 38 U.S.C. § 1153 applies, and the Veteran must demonstrate that there was an increase in disability. However, the evidence from the Veteran’s STRs confirm that the Veteran did not receive any in-service treatment for psychiatric symptoms. Notably, in 1978 the Veteran did not exhibit any psychosis or depression during the June 1978 psychiatric evaluation. See June 1978 Clinical Record in STR-Medical. Finally, during his 1980 separation examination, the Veteran had a normal clinical psychological evaluation. Although the Veteran reported that he experienced worsening of his acquired psychiatric disability during service, as noted above, there are no STRs to substantiate the Veteran’s statements of in-service worsening. See NOD. Notably, the August 2020 VA examiner opined that there was no in-service aggravation because the Veteran did not complain or receive treatment for psychiatric symptoms. See August 2020 VA Medical Opinion DBQ. The Board finds the March 2012 and August 2020 VA medical opinion are highly probative because they were rendered after a thorough review of the medical record (to include STRs) and were supported by sound medical rationale. Moreover, these VA opinions constitute the only opinions to specifically address whether the Veteran’s acquired psychiatric disability which was noted in service increased in severity during service and the Veteran has not identified, presented, or alluded to the existence of a contrary medical opinion - i.e., one that, in fact, establishes a relationship between a psychiatric disability and service by way of aggravation. The Board has also considered whether service connection is warranted for any other acquired psychiatric condition. However, service treatment records do not show treatment or diagnosis of any psychiatric condition other than noting the Veteran’s mild anxiety and endorsed nervousness and excessive worry at the in January 1977 entrance and February 1980 separation examinations. Although the Veteran reported in service stressors, the March 2012 VA examiner has noted that the Veteran’s current psychiatric symptoms were not related to those in-service stressors. The Board acknowledges the lay statements provided by the Veteran and his family in support of his claim, and finds these statements are credible. However, while the Veteran and his family are competent to report matters within personal knowledge, such as symptoms or witnessed events, their statements are not competent to proffer an opinion as to whether the Veteran’s acquired psychiatric disability which was noted at time of entrance into service increased in severity during service. See 38 C.F.R. § 3.159 (a)(1)(2) (defining competent medical evidence and competent lay evidence); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that “lay persons are not competent to opine on medical etiology or render medical opinions.”). Such opinions require specific medical training related to the psychiatric disabilities and are beyond the competency of a lay person, and accordingly, the Board finds the medical findings more probative. See Jandreau v. Nicholson, 492 F.3d 1372, 137677 (Fed. Cir. 2007). The Board considered the argument raised in the October 2020 appellate brief regarding the August 2020 VA examiner’s opinion on the Veteran’s credibility. The August 2020 VA examiner questioned the veracity of the Veteran’s in-service stressors. The Veteran’s representative’s arguments are well taken. Indeed, the United States Court of Appeals for of Veterans Claims (Court) stated in a recent decision that “it is the Board that must make a credibility determination, something it may not outsource to a medical examiner.” See Miller v. Wilkie, 32 Vet. App. 249, 259 (2020). The Board finds that the Veteran’s statements regarding his in-service stressors are competent and credible. Nonetheless, the Board gives no weight to that August 2020 opinion regarding the Veteran’s credibility. This opinion was also rendered in support of a negative nexus opinion for secondary service connection, which is not the issue on appeal, and has not reasonably raised by the facts of this case. However, the Veteran’s representative argument that the Veteran’s in-service stressors “would undoubtedly aggravate any pre service [sic] mental health conditions []”, appears to be a medical opinion. See October 2020 Appellate Brief. The Veteran’s representative has not shown he has the requisite medical training to render a medical opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, this statement is not competent, and the Board assigns this statement no probative weight. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. Here, the probative evidence establishes that the Veteran’s acquired psychiatric disability was noted at time of entry to service and was not aggravated by service. There is no evidence to the contrary. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for an acquired psychiatric disability must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, Associate 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.