BVA1303141: Presumption of Soundness

Citation Nr: 1303141;  Decision Date: 01/30/13;  Archive Date: 02/05/13;  DOCKET NO. 04-11 707

FINDINGS OF FACT

1. Clear and unmistakable evidence exists that the Veteran manifested a psychiatric disability prior to his service and that the aggravation of that disability during his service was a result of natural progression of the condition.   

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a psychiatric disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1153, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.384, 4.125, 4.130, Diagnostic Codes 9201-9211 (2012).   

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS   

The in-service manifestation necessitates consideration of the presumption of soundness. Gilbert v. Shinseki, 26 Vet. App. 48 (2012) (presumption of soundness applies only when there is manifestation of a disease or injury during service). A Veteran will be presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at that time. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

Here, the Veteran reported a history of frequent trouble sleeping, depression or excessive worry, and nervous trouble in December1974 just prior to his entry into service. He further reported having been treated for the mental condition of nervousness. His entrance examination, which was conducted the same day, did not find him either psychiatrically normal or abnormal. It was noted that the Veteran had been hospitalized for mental illness and had seen a psychiatrist. He apparently was referred for further evaluation, as he originally was given a rating of 3 for his psychiatric condition but that rating was crossed out in favor of a rating of 1. A rating of 3 signifies that the condition or defect may require significant limitations, and usually is a disqualification for service. A rating of 1 is indicative of a high level of fitness.

The Court noted that a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of the condition. 38 C.F.R. § 3.304(b)(1) (2012). Thus, the Veteran’s reports of psychiatric symptoms and receiving psychiatric treatment and hospitalization prior to his entrance examination was insufficient to rebut the presumption of soundness. The Court further found that noted means only such conditions as are recorded in examination reports. 38 C.F.R. § 3.304(b) (2012). While it was not determined specifically whether or not the Veteran was psychiatrically normal or abnormal at his entrance examination, it ultimately was determined during that examination that he had a high level of psychiatric fitness. No psychiatric disability was recorded at the entrance examination. Therefore, the Board finds that the presumption of soundness for psychiatric disabilities applies.

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