10-03 296
10-03 296
| Board of Vet. App. | Mar 31, 2017Background
- Veteran served on active duty Dec 1979–Oct 1988; claim on appeal challenges denial of service connection for an acquired psychiatric disorder (depressive disorder NOS / persistent depressive disorder), including as secondary to service‑connected bilateral hearing loss and tinnitus.
- Initial RO denial (Nov 2009); multiple remands by the Board (Nov 2014, Mar 2016) for additional development and opinions; hearings and VA examinations conducted (Sept 2009, Feb 2015, Sept 2016 addendum).
- STRs: entrance exam (Dec 1979) showed no psychiatric disorder; Veteran reported some sleep trouble/worry but was found qualified for enlistment; no separation exam completed.
- Post‑service records show treatment for depression beginning around 2000 and ongoing treatment thereafter; Veteran reported childhood abuse and lifelong low self‑esteem.
- VA examiners (Feb 2015 and Sept 2016 addendum) concluded the depressive disorder clearly and unmistakably pre‑existed service and was not aggravated by service, and that hearing loss/tinnitus did not cause or aggravate the psychiatric disorder.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for acquired psychiatric disorder (direct) | Veteran: psychiatric condition caused by harsh in‑service treatment (yelling, mistreatment after tank injury) | VA: evidence shows disorder pre‑existed service and was not aggravated by service | Denied — preponderance shows pre‑existence and no service aggravation |
| Service connection on secondary basis (due to hearing loss/tinnitus) | Veteran: hearing loss/tinnitus caused sleep loss, isolation, mood changes that caused/aggravated depression | VA: no medical evidence linking hearing loss/tinnitus to etiology or aggravation of psychiatric disorder | Denied — no causal or aggravating link found |
| Adequacy of VA examinations and duty to assist | Veteran/rep: VA exams inadequate (post‑remand brief) | VA: duty to notify/assist satisfied; Feb 2015 and Sept 2016 opinions adequate | VA satisfied duty; opinions adequate and given great weight |
| Presumption of soundness and rebuttal (pre‑existing condition) | Veteran: implied challenge to presumption (argues separation exam would have shown condition) | VA: lack of entrance notation rebutted by clear and unmistakable evidence of pre‑service onset (childhood abuse, lifelong symptoms) | Presumption of soundness rebutted; disorder found to pre‑exist service |
Key Cases Cited
- Wagner v. Principi, 370 F.3d 1089 (Fed. Cir.) (preexistence/aggravation standard under 38 U.S.C. §1111)
- Bagby v. Derwinski, 1 Vet. App. 225 (Vet. App.) (presumption of soundness / notations on entrance exam)
- Smith v. Shinseki, 24 Vet. App. 40 (Vet. App.) (clarifies requirement that presumption attaches only when an induction exam occurred and did not detect the later‑complained‑of disability)
- Nieves‑Rodriguez v. Peake, 22 Vet. App. 295 (Vet. App.) (medical opinions must provide adequate rationale linking conclusions to record)
- Stefl v. Nicholson, 21 Vet. App. 120 (Vet. App.) (standards for adequacy of medical opinions)