Citation Nr: 21026065 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 12-33 832 DATE: April 29, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDING OF FACT Clear and unmistakable evidence demonstrates that an acquired psychiatric disorder pre-existed service and clearly and unmistakably did not increase in severity beyond its natural progression during service. CONCLUSION OF LAW 1. A psychiatric disorder clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated therein. The presumption of soundness at entrance is rebutted. 38 U.S.C. §§ 1111, 1137 2. An acquired psychiatric disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1111, 1131, 1137, 1153; 38 C.F.R. §§ 3.102, 3.303, 3.304 (b), 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November to December 1975. In a February 2018 decision, the Board denied entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In April 2020, the Court issued a Memorandum Decision vacating the Board’s decision and remanding the matter back to the Board for action consistent with the Court’s decision. In a November 2020 decision, the Board remanded to obtain a new VA opinion regarding the Veteran’s psychiatric disorder. A new examination and opinion were obtained in January 2021. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1131. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). 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. The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both pre-existing and not aggravated by service. Id. Clear and unmistakable evidence means evidence that “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). A pre-existing injury or disease will be considered to have been aggravated by 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. 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 service. 38 C.F.R. § 3.306 (b). 1. Acquired psychiatric disorder. The Veteran asserts that military service worsened his pre-existing depression and anxiety, which he had since childhood. See, e.g., March 2017 Board hearing. Additionally, the Veteran states that he was injured the first day of basic training, that this injury prevented him from physical activity, and his anxiety and depression were worsened by inactivity. Id.; see also October 2017 VA examination report (recording that the Veteran claimed his hypertension, first diagnosed in service, “prevented him from being able to exercise. Due to his inability to exercise, ‘I could not relieve my anxiety with physical activity,’ which ‘permanently worsened his depression and anxiety.’”). In several statements made pursuant to his claim, the Veteran also alleged spinal damage occurred in service, which caused him to be depressed and have anxiety. The Veteran served for 30 days from November 1975 to December 1975. The Veteran’s November 1975 enlistment examination noted “normal” on his clinical psychiatric evaluation. The Veteran’s enlistment Report of Medical History, dated November 1975, noted several issues. Among others, the Veteran selected “yes,” for depression or excessive worry, frequent trouble sleeping, frequent and severe headaches, and dizziness or fainting spells. The physician’s summary reported tension headaches “from worry,” insomnia, and depression. Service treatment records contain notations in November 1975 of issues with blood pressure, tension headaches, and a notation of “nervous – wants out of service.” The Veteran was given an honorable discharge from service in December 1975, and he elected not to undergo a separation medical examination. An October 1977 Missouri State Department of Education decision found depression, insomnia, and other symptoms and reported they had pre-existed service. The Veteran claimed “nervousness” or a “nervous condition,” causing headaches and dizzy spells in the mid-1980s, with no current treatment for an acquired psychiatric disability. A February 1983 Colorado state social services reported no psychological issues and reported that his mental status was “normal.” A November 1983 psychological evaluation noted paranoid ideation and anxiety and a high degree of depression related to his body. The psychologist noted testing showed strong verbal skills but marked decrease in “quick response time, management of spatial concepts, hand-eye coordination, and concrete synthesis of parts into a whole.” The psychologist noted this may show possible central nervous system dysfunction due to seven years of boxing. A January 1984 physician’s note reported a diagnosis of “severe anxiety neurosis with depressive features.” The physician noted the above November 1983 evaluation. The Veteran reported that his brother had tried to kill him as a child and his mother “did psychological violence” to him and physically abused him. The physician noted that he had left military service “because he couldn’t keep up with the demands” and that the Veteran believed “chronic lifelong patte[r]n of poverty and its influences” consumed “so much time and energy,” causing his current mental health issues. A July 1994 Administrative Law Judge decision from SSA reported that mental problems began in 1984 when he witnessed a friend’s murder and reported that the Veteran was assessed with manic depression and paranoid personality. A January 1996 psychiatric evaluation noted that the Veteran alleged his “problem started in 1978” when there was a murder in his college dormitory. The Veteran became paranoid afterwards, with subsequent depression. Assessment was “atypical not otherwise specified bipolar affective disorder, mixed with psychotic features,” possible generalized anxiety disorder, and paranoid personality disorder. A June 1998 Physician’s Certification of Borrower’s Total and Permanent Disability, signed by a physician, noted a start date for depression and anxiety of November 1975. There is no explanation of the basis of this document. VA treatment records from March 1993 onward report treatment for several mental health diagnoses including generalized anxiety disorder (with anxiety attacks or panic attacks) and depression or manic depression, which the Veteran reported started in the 1970s. Other records indicate mental health issues dating back to high school related to family life. For example, a February 1998 VA treatment record notes anxiety since high school due to family issues. The Veteran continued to be seen at the VA, primarily for anxiety and depressive disorders. In a March 2000 statement, the Veteran stated that he had pre-existing anxiety and depression at enlistment and that the stress from service had worsened his mental condition. A December 2010 lay statement from a person who knew the Veteran before and after service and reported that the Veteran had increased anxiety and started to experience anxiety attacks after service and started to drink to relieve anxiety after service. The Veteran testified at a Board hearing in March 2017. He reported that on the first day of basic training he was made to do pushups until he collapsed, pain went through his spine and head, and that his blood pressure went up. He reported that afterwards, he was unable to exercise and work out to deal with his anxiety, which caused his preexisting anxiety and depression to worsen. The Board remanded the claim in a September 2017 decision to obtain a VA examination and opinion. The Veteran was afforded a VA examination in October 2017. The examiner recorded diagnoses of generalized anxiety disorder and major depressive disorder. The examiner noted the Veteran’s assertion that his pre-existing anxiety was worsened by in-service diagnosed hypertension, which prevented him from exercising, which was his main way of handling anxiety. The examiner noted possible traumatic brain injury (TBI) from boxing, but with no formal diagnosis, TBI could not be determined. The examiner reported a variety of symptoms of generalized anxiety disorder and major depression disorder. The examiner noted that the Veteran was physically and mentally abused and neglected by his mother prior to service. He additional reported living in fear all his life. The examiner noted that after service the Veteran could not be around people and struggled with social activities. We note that the October 2017 examiner provided a negative nexus opinion. The examiner determined that, while it is likely that the Veteran’s stressor statement is a part of his worsening condition, it is more likely than not that it is not the only condition that has resulted in the permanent worsening of his pre-existing depression and anxiety, and that it is not reasonable to conclude that his depression and anxiety was permanently worsened beyond the natural progression by one single factor. The Board denied the claim in a February 2018 decision, finding that the and the October 2017 medical opinion was the most probative evidence of record regarding whether the Veteran’s pre-existing anxiety and depression were aggravated by service. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). The Court determined that the October 2017 medical opinion did not contain adequate supporting rationale and was inadequate for adjudication purposes. Specifically, the Court noted the examiner acknowledged the Veteran’s service bore some relationship to his psychiatric disorder, but went on to conclude it is more likely than not the in-service stressor is not the only condition that resulted in the permanent worsening of his pre-existing anxiety and depression. The Court explained the fact that the Veteran’s psychiatric condition would be worsened by other factors does not, as the examiner intimated, extinguish the possibility that his psychiatric disorder was aggravated by service. The Court set aside the Board’s February 2018 decision and remanded to obtain an adequate opinion. As such, the October 2017 opinion will not be relied upon in deciding the Veteran’s claim. The Veteran was afforded a new VA examination in January 2021. The examiner diagnosed generalized anxiety disorder with panic attacks disorder and major depressive disorder, recurrent, mild severity. He reported panic attacks “all his life” and that his mother was abusive, and that he started boxing prior to service and calmed down. He stated that he was physically injured during service after doing prolonged push-ups and that he had anxiety and depression that was not treated during service. He noted the experience of doing many pushups during service and had panic attacks, and that his “anxiety was out of control and I could not exercise any longer.” The examiner provided two nexus opinions. Regarding direct service connection, the examiner concluded the Veteran’s depression and anxiety were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that major depressive disorder and generalized anxiety disorder were caused during stressors in his childhood and teen years when he reported being a physical abuse victim from his mother and worsened he had to leave direct military service after one month with symptoms initiating shortly after initial stressors as a child and teen and persisting to present with increased symptoms after having to leave military service after one month. The examiner also concluded that the anxiety and depression, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that the Veteran was anxious and socially isolative as a child, that it lessened with boxing, but reverted when he left military service after one month due to injury and increased since, worsened by life circumstances since the Army. It is not clear that this worsening is beyond natural progression or notably so – even if worsened by military service – there would have been many years for the Veteran to compensate and improve status – so while worsened in the service – the writer cannot support that service effects the Veteran or maintains his anxiety and depression at present. The Board has considered whether a service connection based on a direct or aggravation basis. As noted above, the Veteran’s entrance examination showed a clinically normal psychiatric evaluation, with no psychiatric symptoms otherwise noted in the examination report. although he reported a history of preservice symptoms on the Report of Medical History, history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. See 38 C.F.R. § 3.304 (b). A psychiatric disorder was not noted at entrance within the meaning of applicable law. The Veteran is entitled to a presumption of soundness. Because the Veteran is entitled to a presumption of soundness, the Board must determine whether there is clear and unmistakable evidence that a psychiatric disorder existed prior to service and was not aggravated during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). 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). First, the Board finds that a psychiatric disorder clearly and unmistakably preexisted the Veteran’s service. We acknowledge that the presumption of soundness on entrance cannot be overcome simply based on the representations of the Veteran of a vague history during the entrance examination or thereafter. See Miller v. West, 11 Vet. App. 345, 348 (1998). In this case, as discussed above there is both probative clinical and detailed lay evidence attesting to a pre-existing disorder. Pertinently, both VA examiners determined that the Veteran’s anxiety and depression preexisted his service based on interviews of the Veteran and review of the VA claims file. The Board finds that, based on the Veteran’s statements in a variety of records over numerous years and the clinical documents, there is clear and unmistakable evidence that the Veteran’s psychiatric disability pre-existed service. The next question is whether there is clear and unmistakable evidence that the disorder was not aggravated during service. The burden of proof is on the government. 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 v. Shinseki, 25 Vet. App. 231, 236-37 (2012). However, 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 service. 38 C.F.R. § 3.306 (b). 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 disability, as opposed to the symptoms of that disability, has worsened. Beverly v. Brown, 9 Vet. App. 402, 406 (1996). 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). After considering the evidence, the Board finds that the Veteran’s preexisting psychiatric disorder was clearly and unmistakably not aggravated by his service. The Veteran has routinely asserted that he was unable to control his nervousness, anxiety, and depression due to injuries and high blood pressure during service that prevented him from exercising. He has also reported experiencing panic attacks during service. The Veteran is competent t provide evidence with regard to what he experiences, including his symptoms and their history. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1376–77(Fed. Cir. 2007). However, the contemporaneous record shows no change in his disorder during service. At entrance the Veteran reported a history of symptoms at entrance, including a history of depression or excessive worry, frequent trouble sleeping, frequent and severe headaches, and dizziness or fainting spells, and the physician’s summary noted tension headaches from worry, insomnia, and depression. Service treatment records show only a report that the Veteran was nervous and wanted out of service. In addition, an examiner commented that he though headaches were associated with tension. No specific psychiatric disorder was identified or diagnosed during service. There were no other notations, treatments, or problems related specifically to mental health. The Veteran was discharged after one month, and according to the Veteran’s statements and numerous blood pressure readings taken during service, it appears that he was discharged due to high blood pressure. A rare report of nervousness during service does not rise to the level of establishing an increase in severity. There is little medical evidence that the Veteran’s service resulted in an increase in the underlying psychiatric disorders, or that his report of nervousness constituted aggravation. See Davis, 276 F.3d at 1345; Green, 1 Vet. App. at 323. This conclusion is also supported by post-service treatment records and the Veteran’s lay statements made during those treatments. Soon after he was discharged from service, the October 1977 Missouri State Department of Education decision found depression, insomnia, and other symptoms that had pre-existed the Veteran’s service. The November 1983 psychological evaluation showed depression and anxiety centering around bodily concerns. Notably, there is no indication in the evaluations that the Veteran’s symptoms were related in any way to his service or had been aggravated by his service. The January 1984 physician’s note reported a diagnosis of severe anxiety neurosis with depressive features. The Veteran reported that his brother had tried to kill him as a child and his mother “did psychological violence” to him and physically abused him. The Veteran also believed a chronic lifelong pattern of poverty and its influences consumed caused his then-current mental health issues. Although the treating physician noted that the Veteran had left military service because he could not keep up with the demands, neither the Veteran nor the physician attributed the Veteran’s symptoms, or any aggravation of his psychiatric disorders, to service or any event therein. The first indication in the record that the Veteran’s psychiatric disorders were aggravated by his service is the Veteran’s March 2000 statement in support of an earlier claim for service connection for anxiety and depression. His assertion was not supported by any contemporaneous medical evidence and is contradicted by his prior statements regarding the nature and aggravating factors of his symptoms. Contemporaneous records available at the time include were the February 1998 VA primary care notes, which show the Veteran reported being seen for suicidal ideation prior to service, and an onset of anxiety and paranoia in college after service caused by a killing in his college dormitory. The January 2021 VA examiner also concluded that the Veteran’s psychiatric disorders were clearly and unmistakably not aggravated beyond their natural progression by service. Initially, we note that the examiner determined the Veteran’s symptoms worsened in service. However, as explained above, 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 disability, as opposed to the symptoms of that disability, has worsened. The examiner noted the Veteran was anxious and socially isolative as a child, which lessened with boxing, but reverted when he left military service and had increased since. The examiner noted the worsening was due to life circumstances since the Army, and that he could not support that service effects the Veteran or maintains his anxiety and depression at present. The Board finds that the conclusion and opinion provided by the January 2021 examiner is probative evidence regarding whether the Veteran’s psychiatric disorder was aggravated by service. The opinion was based on an interview of the Veteran and review of the claims file and is supported by the service treatment record and post-service treatment records. There is no medical opinion contradicting the January 2021 opinion. Concerning the December 2010 lay statement suggestive of the emergence of anxiety in service, it does not outweigh the medical evidence of record. While the person who provided the statement is competent to provide a lay statement regarding what he had personal knowledge of, his statements contradict the Veteran’s statements regarding pre-existing anxiety and depression and the medical evidence. The only medical document clearly suggesting that a psychiatric disorder manifested solely during service is the June 1998 Physician’s Certification, which contradicts all other medical evidence of record and many of the Veteran’s lay statements. The most credible evidence of record shows there is clear and unmistakable evidence that the Veteran’s acquired psychiatric disorders were not aggravated by service. The burden is on the government and that standard has been met. The presumption of soundness is rebutted. To the extent that the Veteran was diagnosed since service as having a personality disorder, the Board notes that personality disorders are not diseases or injuries within the meaning of VA law. See 38 C.F.R. §§ 3.303, 4.9, 4.127. We note that the Veteran has routinely stated that his high blood pressure causes him to be unable to exercise, that this problem began during service, and continues to aggravate his anxiety and depression. To the extent the Veteran argues in favor of secondary service connection, such is not warranted as there are no service-connected disabilities. In sum, as the Veteran’s acquired psychiatric disorder clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated therein, service connection for an acquired psychiatric disorder is not warranted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.