Citation Nr: 21009544 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-03 531 DATE: February 22, 2021 ORDER Entitlement to service connection for a psychiatric disorder (claimed as mood disorder, bipolar disorder, and depression) is denied. FINDING OF FACT The preponderance of the evidence is against finding that a psychiatric disorder began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1966 to September 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in January 2019 for additional development. Specifically, the Board directed that VA obtain updated VA treatment records, to obtain any additional private records (if identified by the Veteran), and to schedule the Veteran for a VA examination. Additional VA treatment records were subsequently obtained and associated with the Veteran’s claims file, and the Veteran did not respond to letters from VA seeking additional private treatment records. The VA examination scheduling is discussed more fully below. Considering that each of the Board’s directives was fulfilled, the Board finds substantial compliance with its previous remand instructions. 1. Entitlement to service connection for a psychiatric disorder The Veteran is seeking entitlement to service connection for a psychiatric disorder. Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran's entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304(b). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the veteran’s disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the “preexistence prong” and the “aggravation prong.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). 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. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In the previous January 2019 Board remand, this matter was remanded for the purpose of obtaining treatment records as well as a new VA examination. Pursuant to January 2019 Board remand directives, the Veteran was scheduled for an examination in December 2019. The Veteran, however, failed to appear for the examination; he has made no attempts to reschedule the examination. Further, the Veteran has not shown good cause for missing the scheduled examination. Accordingly, this claim must be evaluated based on the evidence of record. 38 C.F.R. § 3.655(b). In this regard, the Veteran is presumed to be in sound condition upon entry into the service. Specifically, the Veteran’s enlistment examination made no notation of any mental health conditions, to include a mood disorder. In May 1966 (during his active service), the Veteran underwent a mental health evaluation. The physician determined that the Veteran demonstrated a lack of adaptability to service life and presented immature ideas and attitudes. The physician determined that a severe mental or emotional disorder was not present upon examination, but it was clear to the physician that the Veteran suffered from a severe degree of emotional instability. The physician recommended that the Veteran be separated from the service due to a long-standing, duly diagnosed, pre-existing character disorder. The Veteran was diagnosed with a chronic and severe emotionally unstable personality. The Veteran’s separation examination did not report the diagnosis from the mental health physician, nor did the examination document any other mental health disorders. In a September 2013 statement in support of his claim, the Veteran inquired about proof of evidence that a March 2013 VA examiner used to determine that the Veteran had a pre-existing condition prior to his entry into the service. Then, in a February 2015 statement, the Veteran, through his representative, argued that his pre-existing mood disorder was aggravated by service. The Board finds that the presumption of soundness has not been rebutted. In this regard, while there is an in-service medical opinion stating that the Veteran has a pre-existing condition, the physician did not address the possibility of the condition occurring while in service. The Veteran had already been in service for approximately 4 months prior to this evaluation and there is documentation of a pre-service diagnosis of a mental disorder. Additionally, the Veteran’s argument of his pre-existing psychiatric disorder being aggravated by service is not competent because this issue is medically complex, and it is not evident from the record that he has the requisite expertise or training to offer such an opinion. There is also no diagnosis of a psychiatric disorder that predates his entry into service. Further, his statements on whether a condition pre-existed service has been contradictory throughout the record. Thus, the Board finds that the presumption was not rebutted with clear and unmistakable evidence, and the Veteran was in sound condition upon entry into the service. The Veteran appeared for a VA examination in March 2013 to determine the nature and etiology of his claimed disorder. The Veteran was diagnosed with a mood disorder NOS (not otherwise specified) and a personality disorder NOS. The examiner determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner opined that the Veteran’s claimed condition was less likely than not related to his active service. The examiner explained that the Veteran’s condition pre-existed service and was not caused by his adjustment and adaptability issues. The examiner also determined that the Veteran’s claimed condition was not aggravated beyond its normal progression by service. The examiner explained that historical evidence shown that the Veteran’s condition was present prior to service and was not aggravated by service because the Veteran exhibited the same pattern of behavior throughout his adulthood. In the January 2019 Board remand, the Board found the March 2013 medical opinion to be inadequate. Specifically, the March 2013 VA examiner did not provide clear and unmistakable evidence that the Veteran’s condition pre-existed service. In February 2015, the Veteran’s treating physician submitted a medical opinion in support of the Veteran’s claim. The physician opined that the Veteran’s primary diagnosis was Major Depressive Disorder. The physician reported no pre-military history of mental health dysfunction. The physician also stated that, per the Veteran’s report, his mental health symptoms began in service, and he was diagnosed with depression and claustrophobia while in service. In the previous January 2019 Board remand, the Board found that the February 2015 medical opinion from the Veteran’s private treating physician was also inadequate. Specifically, the private treating physician did not clearly relate the Veteran’s current disability to his active service, and the physician does not address the in-service diagnosis of a personality disorder. Instead, the private treating physician based the opinion off of inaccurate reports from the Veteran, such as an in-service diagnosis of depression and claustrophobia. Here, the evidence does not permit the Board to grant this claim in the Veteran’s favor. While the Board acknowledges the Veteran’s lay statements, as previously stated, the Veteran is not competent to provide an opinion on this matter as it is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board finds that the evidence of record is insufficient to establish a nexus between the Veteran’s current disability and his military service. Again, the Board sought to obtain additional relevant evidence in this case to answer the outstanding questions, but the Veteran did not report for his scheduled examination. Despite VA’s duty to assist, it remains the Veteran’s general evidentiary burden to establish all elements of his claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Here, evaluating the claim on the evidence of record, the Board finds no competent evidence relating his current disability to his active service. As such, his claim for entitlement to service connection for a psychiatric disorder must be denied. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. K. Hall, 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.