Citation Nr: 21022190 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-18 593 DATE: April 15, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability is denied. FINDING OF FACT Clear and unmistakable evidence demonstrates that the Veteran’s acquired psychiatric disability pre-existed service, and was not permanently aggravated as a result of his active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. § 1110, 1111, 1131 (2018); 38 C.F.R. §§ 3.102, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1976 to February 1977, and active service in the United States Marine Corps (USMC) from July 1981 to August 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified in a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. The present issue was previously remanded by the Board for additional development in September 2018 and September 2020. The case has now been returned to the Board for further appellate action. Service Connection – Acquired Psychiatric Disability The Veteran contends that his acquired psychiatric disability is directly related to his active duty service. The Veteran also argues that his variously diagnosed acquired psychiatric disability is not a pre-existing condition and did not manifest until his active duty service. See July 2018, Hearing Transcript. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s acquired psychiatric disability preexisted his military service as noted above. The Veteran’s March 1976 entrance examination is absent of any notations of defects, infirmities, or disorders other than a previously fractured right wrist. That examination report is based upon the Veteran’s personal reporting as well as a physical examination. It is undisputed that the Veteran’s acquired psychiatric disability manifested during his period of active duty service. Indeed, four months into his period of service, the Veteran was hospitalized for an acute schizophrenic episode. Therefore, because there was a manifestation of the disability during service, but no notation of it in the enlistment examination, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). 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. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). As to the pre-existence of the Veteran’s acquired psychiatric disability, two separate VA physicians have provided competent and well-reasoned opinions that the disability clearly and unmistakably pre-existed service. In support of these opinions, the physicians cite to the Veteran’s historical treatment records, including the findings of the 1976 Medical Evaluation Board (MEB). That report includes a finding that the Veteran had been hospitalized on two occasions prior to his military enlistment for “bizarre behavior” and treated with lithium and other medications. At the time of the 1976 medical board proceeding, the Veteran reported that the onset of his disability began in late 1974, resulting in his mother having him hospitalized. A year later, he was sent to live with his grandparents and his grandfather had him hospitalized. In the November 1976 MEB report, which was based upon a review of the Veteran’s medical history as well as in-person evaluation, it was determined that the disability pre-existed service, with a date of origin in 1974, confirmed by the two pre-enlistment hospitalizations. Nearly forty-two years later, during the hearing before the Board in July 2018, the Veteran testified that the hospitalizations which occurred prior to his military enlistment and as reflected in his historical records, were not what they appeared to be. He conveyed that when he was a juvenile, he had been approached by a couple of officers who questioned him and took him to a “mental hospital.” This testimony is not only refuted by the documentation of record and expert medical opinions, but also contradicted by the Veteran’s prior reporting. A further inconsistency is demonstrated in the Veteran’s May 2014 informal conference report, at which time he denied any hospitalizations occurring at all prior to his military enlistment. The Veteran’s conflicting testimony is not only inconsistent with his own prior assertions and reporting, but is also contrary to the medical reports and findings of record. As such, the Board finds that the Veteran’s July 2018 Board hearing testimony is not credible, and so, is of very little probative value. The Board finds that the most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran’s acquired psychiatric disability preexisted service. Regarding the second prong, 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. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 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). 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). In this case, the most competent and credible evidence of record illustrates that there is clear and unmistakable evidence that the disability was not aggravated by military service. Most recently, in an October 2020 VA examination report, it is explained that the Veteran started using drugs at age 16, the same time that his psychotic symptoms began. The Veteran himself reported decades of drug abuse and addiction, but reported last using in 2009. He has not required mental health medication or recurrent treatment. From the Veteran’s own reporting of heavy unabated substance use from 1974 until 2009, the examiner opined that the in-service hospitalization for his acquired psychiatric disability was an acute exacerbation of symptoms due to such prolific drug use and that the disability clearly and unmistakably was not aggravated by active service. The examiner took into consideration not only the history of the Veteran’s disability and two similar hospitalizations prior to service, but also considered his post-service treatment, or lack thereof, and continued remission of the disability. As documented in an April 2020 VA examination report, the Veteran has continuously denied experiencing psychotic-like symptomatology, depression, anxiety, or sleep impairment for many years. The Veteran’s treatment records and self-reporting disprove any notion of aggravation of his acquired psychiatric disability which clearly and unmistakably existed prior to service. The medical opinions of record describe the Veteran’s in-service hospitalization as akin to the two prior hospitalizations experienced before his military enlistment. See November 1976, MEB Report. In addition, the evidence establishes that the manifestation of symptoms during service were temporary. The Board finds that the Veteran’s pre-existing acquired psychiatric disability did not increase in severity during service and was not aggravated in service. Given the foregoing, the presumption of soundness is rebutted in its entirety. As the presumption of soundness is rebutted, the second element of service connection is not met and entitlement to service connection for an acquired psychiatric disability is not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, 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.