Citation Nr: 0715437 Decision Date: 05/24/07 Archive Date: 06/01/07 DOCKET NO. 04-11 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to service connection for a personality disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from July 1992 to March 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg. Florida. FINDINGS OF FACT 1. The veteran's psychiatric disorder clearly and unmistakably pre-existed service. 2. A pre-existing psychiatric disorder clearly and unmistakably was not aggravated during service. 3. A personality disorder was noted at service separation and currently. CONCLUSIONS OF LAW 1. The presumption of soundness is rebutted concerning a psychiatric disorder. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. §§ 3.303, 3.304(b) (2006). 2. A psychiatric disorder was not aggravated during the veteran's active military service. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2006). 3. Personality disorders are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Generally, veterans are presumed to have entered service in sound condition as to their health. See 38 U.S.C.A. § 1111 (West 2002); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of sound condition provides that 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 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.A. § 1111; see also 38 C.F.R. § 3.304(b) (2006). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby, 1 Vet. App. at 227. A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease. They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. 38 C.F.R. § 3.304(b)(1). There has been a change in the interpretation of the law with respect to the adjudication of claims involving pre-existing conditions and the application of the presumption of soundness. Essentially, 38 U.S.C.A. § 1111, as interpreted under Cotant v. Principi, 17 Vet. App. 116 (2003), and VAOPGCPREC 3-2003 (July 16, 2003), mandates that, to rebut the presumption of sound condition, 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. The burden of proof is on the government to rebut the presumption of sound condition upon induction by clear and unmistakable evidence showing that the disorder existed prior to service, and if the government meets this requirement, by showing that the condition was not aggravated in service. Vanerson v. West, 12 Vet. App. 254, 258 (1999); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") has defined the word "unmistakable" as an item cannot be misinterpreted and misunderstood, i.e., it is undeniable." Vanerson, 12 Vet. App. at 258 (quoting WEBSTER'S NEW WORLD DICTIONARY 1461 (3rd Coll. Ed. 1988)). See also Crippen v. Brown, 9 Vet. App. 412 (196). The presumption of aggravation may only be rebutted if "there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 C.F.R. § 3.303(a) (2006). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346- 47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Pre-existence The Board has carefully reviewed the evidence of record, including the veteran's arguments, and finds that her psychiatric disorder clearly and unmistakably existed prior to entrance into service. The service entrance examination in January 1992 shows no psychiatric abnormality, and the veteran denied any history of nervous problems at that time. Thus, the veteran is entitled to a presumption of soundness. The Board must next determine whether, under 38 U.S.C.A § 1111 and 38 C.F.R. § 304(b), there is clear and unmistakable evidence that a disease or injury existed prior to service. The Board finds that a psychiatric disorder clearly and unmistakably pre- existed service. The Board notes that although the veteran's psychiatric disorders were not noted on the service entrance examination, the veteran has stated that she had depression and obsessive compulsive disorder that began in childhood. (See notice of disagreement dated in February 2003, March 2004 substantive appeal, representative's statement of May 2006, and history on VA examination in January 2002 and August 2005). The August 2005 VA examiner diagnosed depression and obsessive compulsive disorder and opined that the onset was prior to service, based on the extensive history provided by the veteran. Additionally, the Board sought a medical advisory opinion and in February 2007, one was provided. In response to the Board's inquiry, the psychiatrist stated that after review of the claims file and service medical records, the correct diagnoses were dysthymic disorder and obsessive compulsive disorder. The examiner stated that the onset of dysthymic disorder was prior to service, and the referenced the veteran's report given in August 2005 wherein she reported having periods of depression for many years. As to obsessive compulsive disorder, the date of onset was noted to be prior to service, and the examiner noted the August 2005 examination report of the veteran that she counted things in her head since childhood. The Board finds that record establishes by clear and unmistakable evidence that a psychiatric disorder existed prior to service for the reasons stated above. See Gilbert, 1 Vet. App. at 55. B. Aggravation The Board has determined that a psychiatric disability clearly and unmistakably existed prior to service. The next question is whether a psychiatric disorder was aggravated during service. See VAOPGCPREC 3-2003 (July 16, 2003) (to rebut the presumption of sound condition, 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). The Board has carefully reviewed the evidence of record and finds that the pre-existing psychiatric disorder clearly and unmistakably was not aggravated during service. The service records do show that the veteran was treated for depression during service. In December 1992, she was treated when she told her fiancé that she was going to commit suicide. She reported that she had no psychiatric history, and the diagnosis was normal exam. She was treated on February 14, 1993 for threatening to commit suicide, and situational anxiety was diagnosed. Later in February 1993, she was again seen when she reported feeling suicidal due to trouble with her ex-boyfriend. Depression was diagnosed. At separation in March 1993, the examiner diagnosed personality disorder. The veteran has been examined twice by VA, once in January 2002 when anxiety disorder, obsessive compulsive disorder and dysthymia were diagnosed, and again in August 2005, when depressive disorder and obsessive compulsive disorder were diagnosed. The Board notes that the August 2005 VA examiner reviewed the claims file, examined the veteran, and provided an opinion regarding the veteran's disorder. Concerning whether the pre-existing psychiatric disorders were aggravated during service, he stated that it is as likely as not that the veteran's condition was aggravated during her active military service, but that it is impossible to determine the degree to which her condition was aggravated without resort to pure speculation. The examiner noted that it was during service that the veteran first experienced symptoms warranting hospitalization, and pointed out that the veteran was currently attending therapy and, although she was not asymptomatic, was functioning adequately at work, in school and at home. A psychiatrist's advisory opinion dated in February 2007 in response to a Board request is of record. That clinician reported that she had reviewed the claims file and the service medical records. She reported that in her opinion the correct diagnoses were dysthymic disorder and obsessive compulsive disorder. The psychiatrist indicated that there was no evidence supporting the claim that the veteran's disorders were permanently increased in severity during her active service. It was reported that this was based on statements that the veteran made during her August 2005 VA examination that she is able to care for herself and her daughter, she is currently employed as an accounts payable clerk, she has a driver's license, and that she is planning to graduate in June 2006 with an associate's degree in electronics. It was noted that the veteran's diagnoses appear to have little if any impact on her current level of functioning. It was opined that the veteran's problems may have increased in severity during the time that she was in service, but that this increase was not permanent and that she has shown improvement in the last twelve years since that time. It is the Board's duty to assess the credibility and probative value of evidence, and provided that it offers an adequate statement of reasons and bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). Here the Board finds that the February 2007 advisory opinion is more probative on this issue and must be given more weight than the August 2005 VA opinion. The 2007 opinion was rendered by a psychiatrist in response to a specific request, and the opinion was concise, unqualified and supported by rationale. The August 2005 examiner's opinion was more limited in that he reported it was equally likely or unlikely that the veteran's condition was aggravated in service and that the aggravation could not be measured due to the veteran's current findings. A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Here, the Board accords less probative value to this opinion. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). Thus, this opinion is outweighed by the February 2007 psychiatric advisory opinion. Although the Board acknowledges that the veteran did experience psychiatric symptomatology in service, the Board also notes that aggravation for purposes of entitlement to VA compensation benefits requires more than that a preexisting disorder become intermittently symptomatic during service. There must be permanent advancement of the underlying pathology. The probative medical evidence does not support such a finding. There has also been a lack of aggravation shown as there is no evidence that the psychiatric disorder underwent an increase in disability during service as evidenced by the findings in the February 2007 advisory psychiatric opinion. Thus, aggravation may not be conceded, as 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). The Board has also considered the veteran's own assertions in this matter. The Board finds that such assertions are afforded no probative weight in the absence of evidence that the veteran has the expertise to render opinions about medical matters. Although the veteran and other lay persons are competent to testify as to her in- service experiences and symptoms, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). For the reasons stated above, the Board finds that the presumption of soundness at entrance is rebutted, that the evidence of record clearly and unmistakably shows that the veteran had a psychiatric disorder prior to entering service and that a psychiatric disorder was not aggravated by service. Accordingly, service connection must be denied. Because the Board has determined that a psychiatric disorder existed prior to service and was not aggravated by service, there is no basis to consider service connection based upon incurrence in service. A Personality Disorder Service connection may also be granted for a disease first diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, a personality disorder is not a disease for compensation purposes, although disability resulting from a mental disorder superimposed upon a personality disorder may be service connected. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. A personality disorder was noted on the veteran's service separation examination report in March 1993; however there is no diagnosis of the disorder in service. Private records dated in 1998 and 1999 or VA examination reports in January 2002 and August 2005 do not diagnose a personality disorder. However, in response to a Board inquiry, a psychiatrist offered advisory opinion dated in February 2007, in which she found that the veteran had borderline personality disorder which existed prior to service. Service connection is permissible for a personality disorder, but only where there is competent medical evidence indicating that a personality disorder was aggravated during service by "superimposed" disease or injury. See Carpenter v. Brown, 8 Vet. App, 240, 245 (1995); Beno v. Principi, 3 Vet. App. 439, 441 (1992); 38 C.F.R. §§ 4.9, 4.127. In this case, no medical professional has indicated that the veteran has a current psychiatric disorder incurred during service that is superimposed upon the personality disorder. Therefore, there is no legal basis to grant a claim of service connection for a personality disorder. Accordingly, entitlement to service connection for a personality disorder is not warranted. Duties to Notify and Assist VA has a duty to notify the appellant and his or her representative of any information and evidence necessary to substantiate and complete a claim for VA benefits and to assist the veteran in the development of his or her claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 and Supp. 2005); 38 C.F.R. §§ 2.102, 3.156(a), 5.159 and 3.326(a) (2006). Notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). This notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran was provided proper notice initially in April 2001. That letter was timely sent, prior to the February 2002 initial denial. That letter properly complied with the requirements noted above, with the exception of the fourth one. However, in January 2006, another letter was sent to the veteran which complied fully. The requisite notice was ultimately provided to the appellant before the final transfer and certification of the case to the Board, and she had ample time in which to respond to the notice letter. Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). The appellant has had a "meaningful opportunity to participate effectively" in the processing of her claim. Mayfield , Id. The Board finds that the present adjudication of the issues will not result in any prejudice to the appellant. Additionally in May 2006, the veteran was informed regarding disability ratings and effective dates as required Dingess v. Nicholson, 19 Vet. App. 473 (2006). In addition, the duty to assist the veteran has also been satisfied in this case. The appellant has been examined, and medical records have been obtained. She has not identified any records which could be pertinent to her claim that have not been secured. There is no indication that there are any outstanding records that are pertinent to this claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. ORDER Service connection for a psychiatric disorder is denied. Service connection for a personality disorder is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs