Citation Nr: 21013269 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-47 841 DATE: March 9, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), to include major depressive disorder, is denied. FINDING OF FACT A psychiatric disorder, other than PTSD, a personality disorder, said to include major depressive disorder, pre-existed his active service and was not made worse during the Veteran’s period of active service, and any current acquired psychiatric disorder is not otherwise etiologically related to such service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include major depressive disorder, have not been met. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from March 18, 1977 to April 5, 1977. A hearing was conducted by video conference in August 2019 before the undersigned Veteran’s Law Judge, at which the Veteran testified; a transcript is of record. The Board previously remanded this case for additional development in November 2019 and in October 2020. The matter has now returned to the Board for appellate review. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include major depressive disorder. The Veteran contends that his acquired psychiatric disorder, to include major depressive disorder, is the result of his active military service and he seeks service connection. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303 (d). 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 such claims, 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). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; 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). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all of the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). While the evidence reveals that the Veteran currently suffers from an acquired psychiatric disorder, the competent, probative evidence of record does not etiologically link the Veteran’s current psychiatric disability to his service or any incident therein. Further, the competent, probative evidence of record shows that the Veteran’s psychiatric disorder clearly and unmistakably pre-existed his military service, and also that it was not aggravated beyond the natural progression, or at all, by his very brief period of active service. There is no evidence of superimposed acquired pathology during service. Turning to the record, the Veteran’s service treatment records reveal that at the time of enlistment, the Veteran indicated that he had a history of depression or excessive worry. During the Veteran’s active miliary service and prior to his discharge, he was diagnosed with an on-going personality disorder of significant magnitude. The examiner determined that the Veteran had very few viable stress coping mechanisms available to him. He was significantly oversensitive to the motivations of those around him. He had a poor vocational history, could not define a circle of significant others with whom he interacted meaningfully. Psychological testing revealed an elevated level of internalized stress, a clear tendency to withdraw from stress, a marked immaturity, and a low normal intellective ability. The examiner noted that the Veteran sometimes would readily become immobilized under even minimal environmental press. These patters were said to reflect an on-going personality disorder of significant magnitude. At the August 2019 Board hearing, the Veteran testified that he had no psychological issues prior to service. Further, the Veteran testified that he became depressed in service because the Navy doctors did not accept that he was getting a virus. Also, the Veteran explained that another service member told him that all the white guys would do well on the swimming, but that the Veteran was not physically able to perform as needed. The Veteran additionally testified that two days after leaving service he came down with the German measles and had to be quarantined for three weeks. Since his active service, the Veteran explained that he has been depressed. In December 2019, the Veteran was afforded a VA examination pursuant to the Board’s November 2019 remand. The examiner confirmed diagnoses of major depressive disorder, recurrent, mild, and schizotypal personality disorder. The Veteran reported that he got along with fellow sailors while serving. He further reported that he lives with his mom and that they have a good relationship. He indicated that he attends church regularly and that he is on a bowling league. The examiner explained that a schizotypal personality disorder is a pervasive pattern of social and interpersonal deficits marked by acute discomfort with, and reduced capacity for, close relationships as well as by cognitive and perceptual distortions and eccentricities of behavior, beginning in early adulthood and present in a variety of contexts. The examiner found that the Veteran had eccentric presentation and had no history of successful relationships outside of his family or consistent full time work. The examiner opined that the Veteran’s acquired psychiatric disorder was less likely than not incurred in or caused by the Veteran’s active military service. Rather, the examiner found that the Veteran’s acquired psychiatric disorder pre-existed his service. In support of this conclusion, the examiner found that the Veteran has depression and excessive worry marked on his entrance medical examination in 1976. He also noted that he had depression when he was 15 years old, for which he took medication and a strong family history of schizophrenia. Therefore, the examiner determined, the Veteran’s mental health issues likely began prior to service and the Veteran was not in the military long enough to aggravate his pre-existing mental health disorder. In October 2020, another VA medical opinion was rendered in connection with Veteran’s claim. Once again, the examiner opined that the Veteran’s claimed acquired psychiatric disorder was less likely than not incurred in or caused by the Veteran’s active military service. In addition to restating the rationale from the December 2019 VA opinion, the examiner went on to explain that there was no superimposed acquired psychiatric pathology demonstrated during service that resulted in additional disability apart from personality disorder diagnosed in service. In particular, the examiner tied the veteran’s symptoms from prior to service, during service, and after service to his currently diagnosed schizotypal personality disorder and major depressive disorder. Ultimately, the examiner found that the Veteran had mental health issues noted on his entrance medical examination and his symptoms were evident during military service and were the reason for his discharge. Personality disorders are not diseases or injuries under VA regulations and, therefore, are not disabilities for which service connection can be granted. 38 C.F.R. § 3.303 (c). Nevertheless, service connection may be granted if the evidence shows that an acquired psychiatric disorder was incurred or aggravated in service and superimposed upon the pre-existing personality disorder. 38 C.F.R. §§ 4.9; 4.125(a), 4.127. Service connection might also be granted if it is subsequently determined that the “personality disorder” was in fact the early onset of an acquired psychiatric disorder. In light of the evidence as discussed above, the Board finds that the medical evidence does not show that an acquired psychiatric disorder was incurred or aggravated in service and was not superimposed upon the pre-existing personality disorder. In particular, the December 2019 VA examiner found that the Veteran’s psychiatric disability pre-existed his active military service. Further, the same examiner also found that the Veteran’s pre-existing psychiatric disorder was not aggravated by the Veteran’s active service because the Veteran served on active service for such a short period, which is noted to be less than one month. Moreover, the December 2020 examiner determined that there was no superimposed acquired psychiatric pathology demonstrated during service that resulted in additional disability apart from personality disorder diagnosed in service. Rather, the examiner found that the psychiatric symptoms began prior to service, continued during service, and are presently diagnosed as schizotypal personality disorder and major depressive disorder. In sum, the Board finds that there is no evidence of an acquired psychiatric disorder in service or otherwise related to service. The threshold question, therefore, is whether there is sufficient medical evidence to establish an etiological link between the Veteran’s current disability and his period of active service. The preponderance of the evidence is against this aspect of the Veteran’s claim. The Veteran has not provided a competent medical opinion in support of his claim, and the competent medical evidence of record as discussed above preponderates against the claim. Therefore, the Board finds that there is no evidence of an event, injury or disease in service, or of manifestation of psychosis to a compensable degree during the pertinent presumptive period. Additionally, there is no probative medical evidence linking a current diagnosis of the claimed acquired psychiatric disorder to the Veteran’s military service. The Board acknowledges that the Veteran himself has claimed that his acquired psychiatric disorder is directly related to his active service. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., feeling sad or depressed; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson, 581 F.3d at 1313. Consequently, the Veteran’s lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection, and the Board affords these statements little probative value. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disability, and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.