Citation Nr: 21016229 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 14-29 187A DATE: March 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The claims file contains evidence of record clearly and unmistakably showing both that the Veteran's acquired psychiatric disorders pre-existed service, were not aggravated by service, and are not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1111, 1131, 1137; 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1974 to May 1977. This matter comes before the Board of Veterans’ Appeals (Board) from a April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran’s claim in November 2020 in order to obtain an addendum medical opinion addressing whether it was clear and unmistakable that any acquired psychiatric disorder existed prior to service and, if so, whether it was also clear and unmistakable that any such disorder was not aggravated by service. Upon review of the record, the Board finds that there has been substantial compliance with its aforesaid remand directive. See January 2021 VA addendum medical opinion. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic diseases may be presumed to have been incurred during service if the disorder manifests to a compensable degree within one year of separation from active duty. 38 C.F.R. § 3.309. A Veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.§ 1111 (2012); 38 C.F.R. § 3.304 (b) (2017). This presumption attaches only where there has been an induction examination in which the later complained of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are considered as noted. 38 C.F.R. § 3.304 (b) (2017). History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304 (b)(1) (2017). VA’s General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111 (2017), VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 03-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In deciding a claim based on aggravation, after having determined the presence of a pre-existing condition, the Board must first determine whether there has been any measured worsening of the disability during service and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993). A pre-existing injury or disease will be considered to have been aggravated by active 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. 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 U.S.C. § 1153 (2012); 38 C.F.R. 3.306 (2017). Temporary or intermittent flare-ups of the pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Accordingly, “a lasting worsening of the condition”-that is, a worsening that existed not only at the time of separation but one that still exists currently-is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Put another way, the presumption of soundness is not a “sword” for the Veteran to fulfill the second element of service connection. As noted, before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service. See Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) (the presumption of soundness does not “relieve the veteran of the burden of showing that [she] suffered from a disease or injury while in service”); Horn v. Shinseki, 25 Vet. App. 231, 236 (2012) (“In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service.”; see also Dye v. Mansfield, 504 F.3d 1289, 1293 (Fed. Cir. 2007) (presumption of soundness involves questions of preexistence of “medical problems that arose during service”); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004) (disability compensation requires “ ‘personal injury suffered or disease contracted in line of duty’ “ (quoting 38 U.S.C. § 1110 (2012)). The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder as his conditions were aggravated by military service, evidenced by his alleged motor vehicle accidents (MVA(s)) during service. See September 2010 Statement(s) in Support of Claim; February 2021 Report of General Information; August 2014 VA Form 9; August 2014 Statement in Support of Claim. The Veteran’s February 1974 entrance examination does not reveal a notation of an acquired psychiatric disorder, and therefore the Veteran is presumed to have been sound upon entering service. See also April 2018 Board remand. Therefore, with respect to the Veteran’s PTSD, Major Depressive Disorder (MDD), and Alcohol Use Disorder (AUD), the presumption of soundness attaches. 38 C.F.R. § 3.304(b); February 2020 VA examination report. Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran’s acquired psychiatric disorders preexisted service. Upon remand, the January 2021 VA examiner opined that the Veteran’s acquired psychiatric disorders did clearly and unmistakably exist prior to service as his PTSD was diagnosed in his childhood as he experienced early life trauma of seeing his mother killed, as well as sexual/physical/emotional abuse from father/neighbor. See also February 12, 2010 VA treatment record; March 23, 2004 VA treatment record; November 27, 2019 VA treatment record; February 2020 VA medical opinion; April 2019 VA medical opinion (“Veteran was in in-patient treatment after his Mother's death, and prior to military service, by history of record.”); September 2010 VA 21-4142. Relative to the Veteran’s claimed in-service stressors, namely MVAs, the January 2021 VA medical examiner also opined that a review of the evidence of record does not indicate any evidence of an in-service stressor to serve as the etiology for his acquired psychiatric disorders, as again, they clearly and unmistakably existed prior to service and directly relate to death of his mother and abuse during his childhood years, rather than his military service. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence “that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn, 25 Vet. App. 231, 236-37. On the issue of aggravation, the January 2021 VA examiner opined that there is no evidence that the Veteran’s acquired psychiatric disorders, which clearly and unmistakably existed prior to service, were aggravated beyond their respective natural progressional courses, despite the MVA experiences noted, as there is no acute decline in functioning indicated per the Veteran’s report or per the VA examiner’s record review. The Board acknowledges the Veteran’s contentions that his alleged MVA(s) during service is evidence that his acquired psychiatric disorders were aggravated during service. See, e.g., February 2021 Report of General Information. However, the Board does not find the Veteran competent to provide an opinion as to whether his acquired psychiatric disorders were aggravated beyond their natural courses during service as he does not have the required medical expertise to provide an answer to this complex medical question. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In this case, as to the issue of the etiology of the Veteran’s claimed acquired psychiatric disorders, the Board finds that the VA examiner made it clear that it was her opinion that the disabilities were not related to service but instead were related to childhood traumas. As noted above, the Veteran is presumed to have been sound at entrance to active service. Furthermore, the evidence of record does not clearly and unmistakably show (i.e., it is undebatable) that a preexisting disability was aggravated by service. To this point, the Board notes that medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Accordingly, the Board concludes that the VA opinions carry significant weight. No other competent opinion providing a positive nexus opinion has been presented. Ultimately, the most competent and credible evidence of record illustrates that there is clear and unmistakable evidence that the disability was not aggravated by his military service. See January 2021 VA addendum medical opinion. As such, VA has met its high burden of showing by clear and unmistakable evidence both that the Veteran’s acquired psychiatric disorders preexisted service and were not aggravated by such. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014). R. M. KELLY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, 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.