Citation Nr: 21030126 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-49 467 DATE: May 17, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. An acquired psychiatric disorder, to include PTSD, was not "noted" at entry into active service in March 1984. 2. Clear and unmistakable evidence shows the Veteran's PTSD disability pre-existed service, but there is no evidence that establishes that her pre-existing disability clearly and unmistakably was not aggravated during service. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from April 1984 to April 1988. This appeal stems from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board of Veterans' Appeals (Board) denied service connection for PTSD in August 2019. Subsequently, the Veteran appealed this decision to the Court of Appeals for Veteran's Claims (CAVC) which accepted a Joint Motion for Remand (JMR) and vacated the Board's previous decision on grounds of insufficient reasons and bases for the denial of service connection as well as for not addressing all contentions and evidence submitted by the Veteran. The issue on appeal was remanded by the Board for further development in October 2020. The case has been returned to the Board for adjudication. Service Connection for PTSDLaws and Analysis When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by producing clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing 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. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. 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 U.S.C. § 1153; 38 C.F.R. § 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity. Townsend v. Derwinski, 1 Vet. App. 408 (1991); 38 C.F.R. § 3.306 (a). In contrast, a flare-up of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). 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 is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). In July 2003, the VA General Counsel issued a precedent opinion, which held that, to rebut the presumption of sound condition under § 1111 of the statute, 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. 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. Although VA's General Counsel has determined that the definition of "aggravation" used in 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 does not apply in determining whether the presumption of soundness has been rebutted, the statute and regulation do not otherwise provide any definition of "aggravation" to be applied in making that determination. The word "aggravate" is defined as "to make worse." Webster's II New College Dictionary (1999). After determining whether the presumption of soundness has been rebutted the Board will consider whether the claimed disability was "made worse" by his military service. As noted, veterans are presumed to have entered service in sound condition as to their health. 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). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304 (b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). Thus, at the time of entry, there is a presumption that the Veteran entered in sound health. Here, there is no evidence that there was any defect, infirmity, or disorder with regard to the Veteran's mental health when the Veteran entered service, so she is entitled to a presumption of soundness. Because the Veteran is entitled to a presumption of soundness, the Board must determine whether, under 38 U.S.C. § 1111, the presumption of soundness is rebutted. See Wagner v. Principi, 370 F 3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). In Wagner, the Court established that the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing 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. 38 U.S.C. § 1153. Wagner v. Principi, 370 F.3d 1089 (2004). In Miller v. West, 11 Vet. App. 345, 348 (1998), the Court indicated that "a bare conclusion, even one written by a medical professional, without a factual predicate in the record does not constitute clear and unmistakable evidence sufficient to rebut the statutory presumption of soundness." The Court held that the presumption of soundness upon entry into service may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record. Thereafter, the United States Court of Appeals for the Federal Circuit (Federal Circuit) explained the Miller decision by noting that "[n]othing in the court's opinion suggests that without such evidence the presumption can never be rebutted," emphasizing that any such determination must consider "how strong the other rebutting evidence might be." Harris v. West, 203 F.3d. 1347, 1351 (Fed. Cir. 2000). The Federal Circuit held that contemporaneous evidence of treatment is not required to rebut the presumption of soundness. In Harris, the Federal Circuit found that all medically accepted evidence can be considered, including a recorded medical history. Service connection for PTSD requires (1) medical evidence establishing a diagnosis of the disorder, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link established by medical evidence between current symptoms and an in-service stressor. 38 C.F.R. § 3.304 (f). The diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125 (a), which provides that all psychiatric diagnoses must conform to the American Psychiatric Association's DSM. 38 C.F.R. § 3.304 (f). The Veteran contends her PTSD is a result, at least in part, due to in-service military sexual trauma (MST). While she concedes she suffered some childhood familial sexual abuse (at age 17), she contends that during her military service she also was molested by a superior officer. The Veteran maintains that she never reported the assault to military authorities because she thought no one would believe her. Initially, the Board finds that the Veteran is currently diagnosed with PTSD in accordance with the DSM criteria. See e. g., March 2021 VA examination report. As noted above, only such conditions as are recorded in examination reports are to be considered as noted. In a March 1984 service enlistment physical examination, the Veteran was found to be psychiatrically clinically normal. A pre-existing psychiatric disorder was not noted at service entrance. On an associated Report of Medical History, the Veteran denied depression, excessive worry, or nervous trouble of any sort. The Board finds that a preexisting acquired psychiatric disorder was not "noted" at service entrance. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Therefore, the Veteran is entitled to a presumption of soundness. As the Veteran is entitled to a presumption of soundness, the Board must determine whether, under 38 U.S.C. § 1111, the presumption of soundness is rebutted. See Wagner v. Principi, 370 F 3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). In this regard, the Board finds that the Veteran's PTSD clearly and unmistakably existed prior to active service. Throughout this appeal, the Veteran has contended and reported that she was raped by her step-father at age 17 (prior to service). The Veteran submitted a private DBQ dated in April 2016. At that time, her counselor noted that the Veteran had specifically sought treatment regarding childhood family abuse, in addition to military sexual abuse. During a March 2021 VA examination, the Veteran again reported having been sexually abused at age 17. The March 2021 VA examiner specifically indicated that the abuse occurred in the Veteran's senior year of high school and that she began to struggle with classwork following the abuse. The VA examiner indicated that the Veteran's childhood abuse met criterion A for PTSD and the Veteran reported "always" struggling with trust issues. The examiner noted that the Veteran had two traumatic events which "caused PTSD symptoms to manifest)i.e., the rape at age 17 and the MST occurring during service. See March 2021 VA examination report at pg. 11. For these reasons, the Board resolves any reasonable doubt in the Veteran's favor, and finds that the evidence demonstrates that her psychiatric disorder, diagnosed as PTSD based on sexual assault, preexisted service entrance. The Board next finds that the evidence is not clear and unmistakable that the Veteran's preexisting psychiatric disorder was not aggravated in service. In this regard, service records show that the Veteran reported having irregular menstrual cycles in June 1987. The Veteran has maintained that her irregular menstrual cycles were due to the stress of her MST situation as she had no other medical reason to explain why they were occurring. Additionally, a March 2021 VA medical opinion specifically indicated that the Veteran's MST (military sexual trauma) "exacerbated" the Veteran's PTSD symptoms associated with her sexual abuse at age 17 and caused an array of physical issues and mental disorders, which had impacted the Veteran's life. The Board finds that this medical opinion is probative and supports a finding of some aggravation of the Veteran's pre-existing PTSD disability as a result of her MST. The presumption of soundness has not been rebutted as there is not clear and unmistakable evidence that the Veteran's preexisting PTSD was not aggravated by service, and the Veteran's claim must be considered a normal claim for service connection without consideration of a pre-existing PTSD disability at the time of entrance into active service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The medical evidence of record indicates that the Veteran's in-service sexual assault exacerbated or caused some of her current PTSD symptoms. As noted in the March 2021 VA examination report, the Veteran had two traumatic events which "caused PTSD symptoms to manifest"i.e., the rape at age 17 and the MST occurring during service. This suggests to the Board that the in-service sexual assault was responsible, at least in some part, in the development of the Veteran's current PTSD disability. The Veteran's post-service medical evidence shows that the Veteran continues to have PTSD. In light of the evidence of record, including the Veteran's competent and credible lay statements, her service treatment records, the April 2016 private DBQ, and the March 2021 VA examination report, the Board affords the Veteran the benefit of the doubt and finds that service connection is warranted for PTSD. 38 U.S.C. § 5107 (b) (2012). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.