Citation Nr: 21012507 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-11 155 DATE: March 4, 2021 ORDER Service connection for an acquired psychiatric disorder is denied. FINDING OF FACT 1. The Veteran’s acquired psychiatric disorder, to include generalized anxiety disorder and major depressive disorder, did not clearly and unmistakably preexist his military service. 2. The preponderance of the evidence is against finding that the Veteran’s acquired psychiatric disorder began during his service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for an acquired psychiatric disorder, inclusive of generalized anxiety disorder and major depressive disorder. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1965 to July 1965. This matter is on appeal from a November 2014 rating decision. The Board remanded the matter in August 2018. The matter has been returned to the Board. 1. Service connection for an acquired psychiatric disorder The Veteran contends that he has an acquired psychiatric disorder that preexisted his military service but was aggravated by his service. In the alternative, he contends that his acquired psychiatric disorder is the result of his service, specifically, the vaccines administered during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). At the outset, the Board notes that the most recent VA examiner found that the Veteran has current diagnoses of unspecified depressive disorder. Thus, he at least has established that he has an acquired psychiatric disorder that includes these disorders, and all must be considered in deciding his appeal. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Additionally, the Veteran’s military personnel record contains a July 1965 Naval Aptitude Board Report that shows the Veteran was referred for psychiatric evaluation by his company commander. The report noted that the Veteran has a language problem in that he was educated in a Spanish speaking culture. He read and understood English at a 5th grade level. On psychological testing he scored in a mental defective range on a test that required reading ability. The report further noted that he had done poorly in training and was not motivated for service. Therefore, on his July 1965 discharge examination, his psychiatric evaluation was noted as abnormal and it was noted that he had a longstanding failure to respond effectively to various social, emotional and physical demands and was found unlikely to adapt successfully to service. The Naval Aptitude Board Report noted the Veteran’s general qualifications did not warrant retention. It further noted that his condition existed prior to service and had not been aggravated by service. It was recommended that the Veteran be discharged from service by reasons of “unsuitability.” It still must be shown that there is indeed this correlation, however. See, e.g., Watson v. Brown, 4 Vet. App. 309, 314 (1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred [or aggravated] in service.”). And it is in this equally important respect that the evidence is less favorable to his claim. The Veteran did not clearly and unmistakably have an acquired psychiatric disorder before beginning his military service. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When a defect, infirmity, or disorder is noted on the enlistment examination, the presumption of soundness never attaches, and the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In that circumstance, a veteran must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). “If the presumption of aggravation under section 1153 arises, the burden then 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.’“ Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153). This requires the government to show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b). With all of this in mind, in this case at hand, the presumption of soundness attaches as there was an entrance examination during which this later complained of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” 38 C.F.R. § 3.304(b), and that “[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” Id. at (b)(1). If, as here, a disorder was not “noted” when entering service, VA must show by clear and unmistakable evidence both the preexistence of the condition and the lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the “increase in disability [was] due to the natural progress of the preexisting condition.” 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. In explaining the meaning of an increase in disability, the Court has held that mere “temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened.” Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops, and the claim is denied. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Turning now to the relevant evidence in this case, on his March 1965 Report of Medical History, completed by the Veteran in conjunction with his entrance examination, he denied any history of depression or excessive worry, frequent trouble sleeping, nightmares, loss of memory, bed wetting, and any nervous trouble of any sort. The March 1965 examiner who performed the Veteran’s enlistment examination similarly found no psychiatric disorder then present and the Veteran was noted to be psychiatrically normal upon enlistment. Thus, there was no noted acquired psychiatric disorder at his entrance into service, in turn meaning the presumption of soundness when entering service attaches. Because the Board finds that a mental health disorder was not “noted” at service entrance, VA must show by clear and unmistakable evidence both a preexisting condition and lack of in-service aggravation of the condition to overcome the presumption of soundness. See Wagner, 370 F.3d at 1097. In January 2014, Dr. C.E.M. noted the Veteran reported nervousness, anxiety, irritability, impaired impulse control, difficulty in adapting to stressful circumstances and disturbances of motivation and mood. He diagnosed the Veteran with generalized anxiety disorder and major depression disease. He opined the Veteran’s psychiatric disorders were probably related to vaccines administered during military service; however, no rationale was provided. In October 2014, the Veteran underwent a VA mental health examination. The examiner indicated the Veteran had no mental disorder diagnosis. The examiner did not furnish any opinion relating any psychiatric diagnoses to service because no mental disorder was found on examination. However, this did not address the January 2014 diagnoses or opinion. Further, it does not rebut the presumption of soundness at service entrance, as the examiner did not provide an opinion that the Veteran’s acquired psychiatric disorder clearly and unmistakably preexisted his military service and was not aggravated by his service (both prongs of this two-part standard must be met). Additionally, the examiner did not provide any opinion on direct service connection, the correct standard to decide this Veteran’s claim since the presumption of soundness when entering service had not be rebutted. Those failings were partly why the Board remanded this claim in August 2018 for an addendum opinion (i.e., for supplemental comment on these determinative issues). The Veteran consequently underwent another VA mental health examination in May 2019. During this additional examination, he was diagnosed with an unspecified anxiety disorder. However, the examiner did not provide any opinion. The Veteran underwent another VA mental health examination in January 2021. During this examination, he was diagnosed with unspecified depressive disorder. The examiner indicated he considered all relevant records pertaining to the Veteran’s conditions, including the January 2014 private treatment record that diagnosed the Veteran with generalized anxiety disorder and major depressive disease and well as the May 2019 VA examination. The examiner identified anxiety disorder and depressive disorder as the diagnoses that had been present since the February 2014 claim for service connection. The examiner opined that the evidence of record did not clearly and unmistakably show that any diagnosed acquired psychiatric disorder existed prior to the Veteran’s entrance to active duty in May 1965 as there was no evidence to suggest a current or recent diagnosis existed prior to service. Thus, the Board concludes that, while the Veteran has a diagnosis of an acquired psychiatric disorder including depressive disorder and has had a diagnosis of anxiety during the appeal period, it cannot be concluded the disorders clearly and unmistakably pre-existed his service and clearly and unmistakably was not aggravated by his service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Hence, the presumption of soundness when entering service has not been rebutted, in turn meaning this claim must be analyzed under the theory of direct service connection meaning direct incurrence of this condition during the Veteran’s service or because of it. Direct Service Connection Concerning direct service connection, the question for the Board is whether the Veteran’s current disability began during his service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of an acquired psychiatric disorder that includes anxiety and depression, the preponderance of the evidence weighs against finding the required correlation (“nexus”) between his current diagnosis and that activity or any other during his service. As noted above, the January 2021 examiner confirmed the Veteran had current diagnoses of anxiety and depression during the appeal period. The examiner opined that the acquired psychiatric disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran’s diagnosis of anxiety was not consistent. He further noted that the current depressive disorder appeared to be a new mental disorder and was therefore less likely than not incurred in or caused by active service as there was no evidence to suggest the condition had its onset in or was otherwise related to active service. The Board finds the January 2014 private opinion has little probative value as no rationale is provided for the opinion. The January 2021 VA examiner’s opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, determining whether the Veteran’s anxiety or depression is the result of his service is beyond his lay competence. 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 gives more probative weight to the medical evidence of record, including especially the January 2021 VA mental health examiner’s opinion on remand that corrected the failings and inadequacies of the prior examinations and opinions, including in terms of using the correct legal standard. As such, entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression, is not warranted. The evidence for versus against the claim is not in relative balance (equipoise) to invoke applying the benefit of the doubt doctrine. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelly A. Gastoukian 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.