Citation Nr: 21027665 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-13 287 DATE: May 6, 2021 ORDER Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression, is denied. FINDINGS OF FACT 1. The Veteran's PTSD clearly and unmistakably preexisted active service, and clearly and unmistakably did not undergo a permanent increase in severity during active service beyond normal progression. 2. An acquired psychiatric disability did not manifest during active service nor is it otherwise due to active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD and depression, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from March 1968 to February 1970. The United States Court of Appeals for Veterans Claims (Court) has held that the Board must broadly construe claims and in the context of psychiatric disorders must consider other diagnoses for service connection when the medical record so reflects. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, the Board will consider entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, hence the recharacterization of the issue hereinabove. The Veteran asserts that he has PTSD due to a pre-service event and that his active service aggravated his PTSD. Specifically, the evidence of record reflects that the Veteran has PTSD due to a pre-service incident that occurred at the Rocky Mountain Arsenal around October or November 1967 wherein a man was killed, and the Veteran suffered a concussion and broken ankle. 02/27/2015 CAPRI at 28; see also 10/30/2014 VA Form 21-0781 Statement in Support of Claim for PTSD. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. 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 was incurred in service. 38 C.F.R. § 3.303(d). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. 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). The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The law further provides that the burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Importantly, the VA Office of the General Counsel determined that VA must show by clear and unmistakable evidence that there is a pre-existing disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). 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. Id. The Board must follow the precedent opinions of the General Counsel. 38 U.S.C. § 7104(c). If the presumption of soundness applies, the burden then shifts to the Government to rebut the presumption by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Accordingly: Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness . . . the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). "The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Id. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. See also 38 C.F.R. § 3.159(a)(2) ("Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person."). An October 1967 Pre-Induction Report of Medical Examination reflects that his 'psychiatric' state was clinically evaluated as normal. 01/02/2015 Military Personnel Record at 6. A November 1969 Report of Medical History completed by the Veteran for separation purposes reflects that he checked the 'No' boxes for 'frequent or terrifying nightmares,' 'depression or excessive worry,' and 'nervous trouble of any sort.' 01/02/2015 Military Personnel Record at 2. A November 1969 Report of Medical Examination conducted for separation purposes reflects that his 'psychiatric' state was clinically evaluated as normal. 01/02/2015 Military Personnel Record at 2. A February 1970 'Statement of Medical Condition' reflects that there had been no change in his medical condition since his separation examination. Id. at 8. Thus, the Board finds that the presumption of soundness attaches with respect to the Veteran's claimed PTSD as a psychiatric disability was not diagnosed at his pre-induction examination and a psychiatric examination was normal. However, clear and unmistakable evidence demonstrates that his PTSD pre-existed service, as will be discussed next. A March 2008 VA outpatient record reflects the Veteran's complaints of experiencing PTSD and depression related to the trauma of a work-related explosion prior to his military service. He also reported numerous head trauma following motor vehicle accidents. He reported significant stress from a lost job and income. The examiner diagnosed PTSD, depression, polysubstance abuse/dependence in sustained remission. 02/27/2015 CAPRI at 514. A May 2008 C&P examination (conducted for nonservice-connected pension purposes) reflects that the Veteran denied any history of inpatient or outpatient psychiatric treatment until March 2008, when he presented for VA mental health treatment. At that point, he stated he was seeking treatment for anxiety and depression. The examiner noted that he did not report a physical assault that he sustained while stationed in Germany during his mental health evaluation, but rather he discussed recurring thoughts and dreams about an explosion, which occurred in 1967 at Rocky Mountain Arsenal prior to his military service. He stated that during this accident a co-worker was killed and either the co-worker or himself was responsible for the accident. He never received information about who or what caused the accident or any closure to this. He reported PTSD symptoms related to this pre-military accident. He reported nightmares related to the Rocky Mountain Arsenal incident. Upon mental status examination, the examiner diagnosed PTSD; depressive disorder related to his medical conditions; ADHD related to his pre-military experiences; panic disorder, resolving; and, polysubstance abuse, resolved. In January 2020, the Veteran underwent a C&P examination. The examiner cited to an October 2014 VA mental health evaluation in which the Veteran was seeking treatment for anxiety and depression. He reported recurring thoughts and dreams about an explosion he was in in 1967 at Rocky Mountain Arsenal. The Veteran reported that a coworker was killed and "either he or I was responsible" for the accident. He reported nightmares 2-3 times per month, has intrusive thoughts often, has flashbacks, increased startle response and hypervigilance. He reported he never had any "closure" or heard who or what caused the accident leaving him feeling responsible and like he "killed" his coworker. He also reported depression "on and off" with sad mood, poor sleep, irritability and anxiety. He denied any suicidal or homicidal ideation. He reported chronic pain issues particularly on the left side of his body. The January 2020 examiner opined that the Veteran's PTSD is less likely as not due to service, and that his PTSD clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated beyond its natural progression by service. The examiner stated that he still meets the criteria for chronic PTSD. This is due to an explosion incident that occurred prior to his enlistment in the service. After the service working as a corrections officer may have contributed to ongoing PTSD symptoms as he dealt with difficult and assaultive inmates. The examiner stated that there are no stressors from his time in the service that meet Criterion A; there is no evidence that his pre-existing condition worsened beyond normal course due to the service. (He also contends today that his polysubstance dependence is related to the service because he was introduced to drugs and alcohol while active duty. This is not a current diagnosis for him (in remission multiple decades) nor is it a service connectable diagnosis. He wants it to be made clear that he is angry for the service getting him hooked on drugs. He also wants to make it clear that he is angry that he lost rights to his firstborn child because of being drafted. He wants to make it clear that he is primarily upset by the injustice of being drafted.) The Board finds the Veteran's lay assertions that his PTSD predated service, his assertions that he has PTSD due to a pre-service incident, his assertions made to a VA examiner upon seeking treatment in March 2008, his subsequent statements made in the course of seeking mental health treatment, and the January 2020 opinion of record constitute collective clear and unmistakable evidence that the Veteran's PTSD preexisted service. The inquiry does not end there, however; VA must demonstrate by clear and unmistakable evidence that the disability was not aggravated during the Veteran's active duty service. As detailed above, service treatment records do not reflect any complaints of or treatment for a psychiatric disability. However, in light of the Veteran's lay assertions, an opinion was sought. The Board finds that the January 2020 VA examiner's opinion finding against aggravation is the most probative of record as it is based on a review of the evidence and a clear rationale is provided in support of her conclusions. Given the depth of the examination report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran's service connection claim. Based on the examiner's opinion, the Board concludes that the Veteran's pre-existing PTSD clearly and unmistakably did not undergo an increase in severity during or due to service. There is no contrary opinion of record. With regard to the diagnosed depression, the medical evidence of record does not provide support for any complaints of or treatment for depression during active service. As discussed above, the May 2008 examiner concluded that the Veteran's depression was related to medical conditions, including the onset of Hepatitis. There is no medical evidence of record which provides support for a relationship between his depression and service. The Board has given consideration to the lay contentions of the Veteran, to include his lay statement, statements documented in post-service treatment records, and his Board hearing testimony. In light of his lay assertions, and given the complexity of the medical question involved, an opinion was sought which does not provide the basis for granting service connection based on aggravation of a pre-existing condition. The medical evidence and opinion outweigh the lay contentions of the Veteran. For these reasons, the preponderance of the evidence is against the claim and entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, is not warranted. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.