Citation Nr: 0734169 Decision Date: 10/31/07 Archive Date: 11/07/07 DOCKET NO. 04-35 049A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Seales, Associate Counsel INTRODUCTION The veteran served on active duty from March 1985 to March 1989. This matter is on appeal from the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT It is as likely as not that the veteran's currently manifested acquired psychiatric disability had its onset in service. CONCLUSION OF LAW Resolving doubt in favor of the veteran, an acquired psychiatric disability was incurred in active military service. 38 U.S.C.A. § 1131, 1132, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.102, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks service connection for an acquired psychiatric disability, to include major depressive disorder and bipolar disorder. She indicates that she experienced a number of stressful events during service, including a sexual assault, a physical assault, and sustained harassment at the hands of a supervising officer. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2007). 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. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under § 3.303(b), an alternative method of establishing the second and/or third Caluza element is through a demonstration of continuity of symptomatology. See Savage, 10 Vet. App. at 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v Brown, 7 Vet. App. 238 (1994). The Court has held that lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Gahman v. West, 13 Vet. App. 148, 150 (1999). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, 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 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. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 109 (Fed. Cir. 2004). A review of the claims file reveals a reported history of excessive worry at entrance into service; however, no psychiatric abnormalities were noted during the veteran's December 1984 clinical evaluation. Therefore, she is entitled to the presumption of soundness upon entrance into active duty. Service medical records reflect that the veteran sought treatment for acrophobia, or the fear of heights, in August 1985. In June 1988, she sought treatment for reactive depression associated with marital infertility. For the remainder of her term of service, she sought ongoing psychiatric treatment for depression and anxiety related to her inability to conceive and symptoms associated with job- related stresses. However, no psychiatric abnormalities were noted during the January 1989 separation examination. Post-service evidence reflects that the veteran has been under regular psychiatric care. In May 1999, she underwent a psychiatric evaluation for the purposes of vocational rehabilitation and was diagnosed with recurrent, severe major depression and dysthymic disorder. She sought treatment for "severe depression" in August 2000 and reported a history of depression since 1985. A VA mental disorders evaluation was performed in October 2002. The examiner reviewed the veteran's service medical records and post-service psychiatric treatment records. The veteran described memories of extreme depression and suicidal ideation with onset at age thirteen. The examiner noted that the veteran had a history of rejection and childhood adjustment problems. During the mental status evaluation, the veteran was emotionally labile and easily moved to tears. The examiner stated that the veteran was obviously depressed. Bipolar disorder and borderline personality disorder were diagnosed. The examiner concluded the veteran had a preexisting recurrent major depressive disorder and a borderline personality disorder, but acknowledged that the symptoms described during service were similar to those noted throughout the veteran's medical history, and further, were consistent with her present symptoms. The examiner concluded that the symptoms noted during service represented a small sampling of a continuation of emotional instability predating service and still present today. In light of the evidence of record, the veteran is entitled to the presumption of soundness. She underwent a psychiatric evaluation at enlistment into service, at which time no psychiatric abnormalities were noted. She served on active duty for three years before seeking treatment for depression and anxiety. Although she has reported a history of psychiatric symptoms since adolescence, her lay statements alone are not sufficient to rebut the presumption of soundness. See Gahman, 13 Vet. App. at 150. Further, although post-service medical judgment alone may be used to rebut the presumption of soundness, the evidence must be clear and unmistakable. See Jordan v. Principi, 17 Vet. App. 261 (2003). In this case, the veteran has provided inconsistent and contradictory information regarding the onset of her acquired psychiatric disability throughout her treatment history. Without medical records reflecting pre- service psychiatric treatment, an acquired psychiatric disorder is not shown by clear and unmistakable evidence to have existed prior to service. Next, the objective clinical evidence, when viewed with the current evidence, indicates that the veteran's acquired psychiatric disability more likely than not began during active service. The evidence is uncontroverted that she sought treatment for depression and anxiety related to infertility and job-related stress during active service. Moreover, the veteran continued to demonstrate symptoms of depression post-service and has been on medication. Therefore, the medical evidence of record demonstrates a continuity of symptomatology. Further, a VA examiner reviewed the veteran's medical history and concluded the symptoms noted in service are consistent with her current disability. The veteran sought treatment for treatment for depression and anxiety during active service and received continuous treatment for the same symptoms after separation from service. This is not contradicted by any other evidence in the claims file. The medical opinion of record indicates the manifestations of the veteran's current psychiatric disability are a continuation of the symptoms noted during service. Therefore, service connection for an acquired psychiatric disability is warranted. The Board has considered the veteran's service connection claim for an acquired psychiatric disability with respect to the VA's duty to assist and notify under the provisions of the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Given the favorable outcome noted above, however, no conceivable prejudice to the veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). ORDER Service connection for an acquired psychiatric disorder is granted. ____________________________________________ L. HOWELL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs