Citation Nr: 21027541 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-03 192 DATE: May 6, 2021 ORDER Service connection for an acquired psychiatric disorder (APD) is denied. FINDINGS OF FACT 1. The presumption of soundness does not attach to the Veteran's claimed APD. 2. A medical nexus has not been shown between the Veteran's APD and her active duty service. CONCLUSION OF LAW The criteria for service connection for an APD have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 2001 to April 2003. In December 2019, she appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Service Connection Service connection for an APD is denied. The Veteran asserts that she had a mental health condition prior to her entrance into the military and that it was aggravated during her active duty service. At the December 2019 Board hearing, the Veteran asserted that she received mental health treatment in 1996 or 1997, prior to military service and also within a year of separation from service. Based on her testimony, the Board remanded the case to try and obtain any private treatment records from any private mental health providers who may have treated her before or after her active duty service. The Veteran was sent correspondence in May 2020 and was asked to identify the private medical sources she received treatment from, prior to her entrance into the military. She identified a medical provider and a medical facility; however, both the medical provider and the medical facility reported that the Veteran's medical records had been destroyed. As such, the Board finds that the April 2020 Board remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's service treatment records (STRs) shows that she had an enlistment examination in June 2001. Upon clinical examination, the Veteran was found to have a normal psychiatric evaluation. The Veteran also specifically denied nervous trouble of any sort, denied receiving counseling of any type, denied depression or excessive worry, and denied being evaluated or treated for a mental condition. A careful review of the Veteran's STRs does not reveal any complaints of psychiatric problems, or a diagnosis for any psychiatric conditions. The Veteran corroborated this finding when she testified that she was not ever seen by a psychologist or psychiatrist while on active duty service. The Veteran provided testimony at the December 2019 Board hearing. She testified that she was first seen by a mental health professional before she entered the military. She reported that a mental health professional gave her medication and identified her as having some sort of mental health issue prior to entering the Army. She testified that she notified her recruiter, but she recalled that he may have told her not to mention any psychiatric problems during the enlistment process. She also testified that after her separation from the military, she first saw a private counselor. The Board acknowledges that the Veteran's SSA records show that she reported in February 2010 that she had an overdose in 1997 and was referred to a counselor, who she saw for a brief period of time. Although there is lay evidence of mental health treatment for an overdose, prior to her entry into the military, there is no objective evidence that she was diagnosed with an APD, prior to her entrance into the military. 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 APD preexisted her military service. Here, the Veteran's private mental health records were sought, but those records have been destroyed. The only evidence that the Veteran had a preexisting APD, prior to her entrance into the military, are her own lay statements. The diagnosis or presence of a preexisting APD has not been corroborated by the contemporaneous clinical evidence of record. The Veteran's June 2001 entrance examination is absent of any notations of any mental health defects, infirmities, or disorders. However, the most competent and credible evidence of record shows that the Veteran's APD did not manifest during her active duty service. She testified that she did not seek mental health treatment during her active duty service. Her STRs include an in-service medical examination that is marked as a "chapter" examination; however, the Board notes that it took place about a month prior to her separation from the military. Similar to the entrance examination, the Veteran specifically denied nervous trouble of any sort, denied receiving counseling of any type, denied depression or excessive worry, and denied being evaluated or treated for a mental condition. Here, there was no indication in the STRs that there were any in-service manifestations of the presence of an APD, or symptoms of an APD. As such, the presumption of soundness does not attach. See Gilbert, 26 Vet. App. 48, 52 (2012). Instead, the Board will adjudicate whether service connection on a direct basis is warranted. The Board first acknowledges that the Veteran has been diagnosed with bipolar disorder. See VA Treatment Record dated December 14, 2015. As previously discussed, the Veteran's STRs do not contain any complaints of, diagnosis of, or treatment for any mental disorder. Further, the Veteran's medical examination, which took place about two months prior to her separation from the military, showed no psychiatric complaints. The Board notes that the Veteran appears to have been diagnosed with an APD in 2009, about 6 years after her active duty service. Further, there has been no indication in the post-service medical records, to include her VA treatment records, private treatment records, and SSA medical records, that her APD is due to her active duty service. For example, the Veteran did not describe any in-service incidents that have led to the development or aggravation of any APDs. Thus, an in-service incurrence has not been established. Here, there is no evidence of an in-service incurrence and there has been no indication that there is a medical nexus between the Veteran's currently diagnosed APD and her active duty service. The Board acknowledges that the Veteran has not been afforded a VA examination for her APD. However, the Board also notes that only the Veteran's assertions have indicated a relationship with service, which is insufficient to trigger VA's duty to provide an examination, since in these circumstances, the validity of the assertions would require competent and objective medical evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also acknowledges that the Veteran has testified that she first sought mental health treatment within a year of her separation from the military. However, the contemporaneous evidence of record does not corroborate her testimony. Her SSA records indicate that she was diagnosed with an APD in 2009. VA received the Veteran's Appellate Brief on December 13, 2020, in which her representative asserted that the evidence located within the two facilities, provided to VA after the April 2020 Board remand, would prove service connection for an APD. The Board understands the Veteran's belief that the destroyed medical records would have proved service connection was warranted. However, the Board cannot infer what is contained in those records and the Board cannot accept her lay assertions as objective medical evidence that she had an APD that preexisted her active duty service. However, even if such were accepted, the fact remains that evidence has not been submitted to show that an APD worsened during service. The Board also recognizes the Veteran's sincere belief that her APD preexisted her active duty service, or in the alternative, was due to her military service. However, the objective evidence of record does not support her assertions and the weight of the evidence is against the claim. Without some medical suggestion that the APD may be the result of service, there is not a basis to obtain a medical opinion. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Accordingly, service connection for an APD is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.