Citation Nr: 21012335 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-39 195 DATE: March 4, 2021 ORDER Service connection for an acquired psychiatric disorder is denied. FINDING OF FACT An acquired psychiatric disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1993 to February 1997, from March 2004 to June 2006, and from May 2011 to October 2011, with additional periods of inactive duty in the Reserve and National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in April 2015 by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that a supplemental statement of the case (SSOC) was issued June 12, 2020. On August 15, 2020, VA received the Veteran’s Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) in which the Veteran requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ), indicating he intended to opt into VA’s modernized appeal system, known as the Appeals Modernization Act (AMA). However, the NOD was not received within one year of the rating decision on appeal or within 60 days of the most recent SSOC; therefore, the submission was not timely, and the Veteran’s appeal will remain in the legacy system. In October 2018 and August 2020, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends he has an acquired psychiatric disorder, to include depression, that began in service as a result of the stress of his active duty assignments. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 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. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When a pre-existing disability is noted upon entry into service, the veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In this circumstance, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish an increase in severity of the disability in service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). In this regard, a preexisting 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. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to active service. 38 C.F.R. § 3.306(b). Further, the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Personality disorders are not “diseases” or “injuries” for which service connection can be granted as a matter of law. 38 C.F.R. §§ 3.303 (c), 4.9; Beno v. Principi, 3 Vet. App. 439, 441 (1992). However, disability resulting from a psychiatric disorder superimposed upon a personality disorder may be service-connected. 38 C.F.R. § 4.127. 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). As an initial matter, the Board notes post-service treatment records reflect multiple diagnoses of an acquired psychiatric disorder to include major depressive disorder, generalized anxiety disorder, and a personality disorder, unspecified, cluster B traits. See September 2019 VA examination and July 2014 Dr. H.J. private treatment records. However, such are negative for any indication that the Veteran’s acquired psychiatric disorder is related to his military service. In this regard, a May 2011 pre-deployment resiliency assessment reflects the Veteran reported feeling down, depressed, or hopeless for several days in the previous two weeks. However, such assessment noted the Veteran’s report of such symptoms was related to the fact that, at such time, his mother had stage four cancer and was in hospice care. Moreover, his August 2011 post-deployment health assessment (completed a month prior to the end of his deployment) reflects the Veteran denied emotional problems. Further, in a July 2012 deployment resiliency assessment, the Veteran denied depressive symptoms and mental health concerns. However, in a post-deployment heath reassessment completed in July 2013, the Veteran reported depression and mental health symptoms. Private treatment records reflect the Veteran first sought treatment with Dr. H.J. for an acquired psychiatric disorder in July 2014. At his initial psychiatric assessment, the Veteran stated he began having trouble sleeping directly after entering active duty service in 1993; and due to his working hours during service, he is only able to take one-hour catnaps instead of sleeping 6 hours at night. Further, he reported there were a few events in service that were very stressful, to include a time when an airplane took off with a specific part missing, causing the Veteran to receive disciplinary action. Additionally, the Veteran reported stress over a decision not to allow an airplane to take off, and regarding his mother’s health in 2011 before he deployed. The Veteran stated he worried endlessly about his mother’s health, which caused him to gain weight while deployed. Dr. H.J. diagnosed the Veteran with major depressive disorder (MDD) and moderate general anxiety disorder (GAD). See Dr. H.J. Initial Psychiatric Assessment records. Private treatment records reflect the Veteran has continued to seek mental health treatment throughout the period on appeal; however, Dr. H.J. did not offer an etiological opinion regarding the Veteran’s acquired psychiatric disorder. VA treatment records dated September 2014 reflect a positive depression screen, but the Veteran stated his mother had just passed away which was the cause of his worry and stress. A May 2015 mental health screening revealed the Veteran was having family problems with his father. In an August 2015 sleep study, the Veteran reported excessive daytime sleepiness and a depression screening suggested mild depression. However, the clinician stated that further inquiry was needed to distinguish the Veteran’s symptoms of depression with his symptoms of sleep disturbance. A July 2016 depression screening was negative. Per the Board’s October 2018 remand, the Veteran was afforded a VA examination in connection with his claimed acquired psychiatric disorder in September 2019. At that time, the examiner reviewed the record, interviewed the Veteran, conducted a mental status examination, noted the Veteran’s previously diagnosed MDD and GAD by Dr. H.J., and additionally diagnosed the Veteran with a personality disorder, unspecified, cluster B traits. The examiner then opined that the Veteran’s currently diagnosed MDD and GAD were unrelated to service. In support of such opinion, she indicated the Veteran reported some potential abuse during his childhood that could be contributing to some of his current symptoms. Further, the examiner indicated that the Veteran did not experience any aversive or traumatic events that would precipitate a mental health diagnosis. She also noted that, while the Veteran reported depressive symptoms for 10 out of 30 days in April 2012, which was not during a period of active duty, he did not receive any mental health services. Rather, he first sought treatment for major depressive disorder and generalized anxiety disorder approximately a year after his retirement in 2013. However, the opinion failed to reflect the examiner’s consideration of the Veteran’s affirmance of depressive symptoms, as noted in the May 2011 medical record. Nor did the opinion consider the Veteran’s post-service accounts of how the stresses related to his active duty assignments created feelings of anxiety, which he did not report during active duty for fear that such reports would interfere with his military career advancement. Further, the VA examiner also diagnosed the Veteran with a personality disorder, which is considered a congenital defect for which service connection may not be granted. 38 C.F.R. § 3.303 (c). However, a congenital defect can be subject to superimposed disease or injury; if such a superimposed disease or injury occurs during military service, then service connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990). Thus, the case was remanded to obtain an addendum opinion addressing these matters. The Veteran underwent another VA examination in December 2020. At such time, after a review of the record and in-person examination, the examiner diagnosed the Veteran with unspecified personality disorder and MDD, recurrent, moderate. However, she found the Veteran’s acquired psychiatric disorder was less likely than not proximately due to or the result of his military service. In support thereof, she noted that there was no evidence of an acquired psychiatric disorder during service, and any of the Veteran’s claimed anxiety symptoms are subsumed under his diagnosed conditions. The examiner further opined that it was less likely than not that the Veteran’s unspecified personality disorder was subject to a superimposed disease or injury during service that resulted in additional psychiatric disorder. As rationale she stated the etiology of a personality disorder is empirically believed to be the result of complex genetic and environmental factors and not solely by identified stressor-related events. A personality disorder serves as a filter affecting one’s perception on life circumstances. As a result of this perspective, the Veteran’s is having a chronic adjustment response characterized by mood and anxiety symptoms and affecting his behavior. Further, as the nature of such disorder is to be enduring and pervasive, the expected course is continuation throughout the lifespan and with patterns of response depending on the stressor. It is also expected personality disorders exacerbate symptoms, i.e. affective instability that is due to a marked reactivity of mood (e.g. intense episodic dysphoria, irritability, or anxiety) during times of perceived trauma, abandonment or devaluation. She further stated it would appear this has been the case with the Veteran. The examiner went on to note that the May 2011 pre-deployment resiliency assessment reflected the Veteran’s report of feeling down, depressed, or hopeless was related to the fact that, at such time, his mother had stage four cancer and was in hospice care. The Board notes Dr. H.J.’s initial psychiatric assessment also reflects the Veteran’s report of not being granted a waiver to stay home and worrying about his mother’s cancer during his deployment. Further, the VA examiner noted that at his post-deployment health assessment, he denied depression and posttraumatic stress syndrome (PTSD) symptoms, and that his post-military records are absent for evidence of chronicity of mental health conditions or continuity of care since active service ended in 1997 or over the years of inactive duty. The examiner further noted the Veteran’s April 2012 assessment in which the Veteran acknowledged depressive symptoms for 10 out of 30 days, but no follow-up services were rendered. The Board notes this was not a period of active duty service. Thus, the examiner opined, while the Veteran may have experienced stress in the military, current symptoms are not consistent with what would be the long-term outcome of reported experiences or circumstances. Additionally, the examiner stated the Veteran had untreated obstructive sleep apnea since 2015, which exacerbates daytime mental health systems. The examiner explained that chronic lack of restorative sleep causes neuronal damage and degeneration. Insufficient neuronal regeneration manifests in host of clinical physiological changes including behavioral, personality, cognitive, and physical complaints. (Eugene & Masiak, 2015; Suntsova, et al. 2002; Alhola, 2007). Specifically, repeated obstructions to breathing can set off a constant fight-or-flight response, which can carry over into the daytime. When a person is chronically oxygen deprived from not breathing at night due to sleep apnea, there is a build-up of carbon dioxide, hypercapnia, which studies show can increase the acidity levels in the amygdala, which is the area of the brain that processes emotional responses and behavior (e.g. Banghu, 2009). This biochemical reaction, along with generalized nervous system over-responsiveness that comes along with inefficient sleep, often results in daytime experiences of feeling over-stressed, over-anxious, paranoid, and on edge during daytime hours. The Board affords great probative weight to the December 2020 VA examiner’s opinion as she provided a complete rationale, relying on and citing to the records reviewed, and she offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no medical opinion to the contrary. Additionally, the Board acknowledges the Veteran believes he has an acquired psychiatric disorder related to service. However, while lay persons are competent to provide opinions on some medical issues, the cause of such disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Specifically, such matter involves a medical subject concerning an internal psychiatric process extending beyond an immediately observable cause-and-effect relationship. Thus, the Board finds the Veteran’s opinion on such matter is not competent and, thus, is entitled to no probative weight. Additionally, the Board notes the Veteran has a current diagnosis of unspecified personality disorder. However, as noted previously, personality disorders are not “diseases” or “injuries” for which service connection can be granted as a matter of law. 38 C.F.R. §§ 3.303 (c), 4.9; Beno, supra. Consequently, service connection for the Veteran’s personality disorder is precluded by law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive of the issue before the Board, the claim should be denied because of the lack of legal merit or the lack of entitlement under the law). Accordingly, the claim must be denied. Based on the foregoing, the Board finds that an acquired psychiatric disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. Furthermore, based on the highly probative opinion rendered by the December 2020 VA examiner that the Veteran’s MDD, recurrent, moderate is unrelated to military service, the Board finds that an acquired psychiatric disorder was not superimposed upon a personality disorder during service, but instead the Veteran’s depression and anxiety symptoms are the result of his personality disorder. Consequently, there is no doubt to be resolved and service connection for an acquired psychiatric disorder is not warranted. 38 U.S.C. § 5107, 38 C.F.R. § 3.102; Gilbert, supra. K. R. LAFFITTE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.