Citation Nr: 1108655 Decision Date: 03/04/11 Archive Date: 03/17/11 DOCKET NO. 09-26 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Bridgid D. Cleary, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2000 to September 2000 and from September 2004 to December 2005. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Wilmington, Delaware, Department of Veterans Affairs (VA) Regional Office (RO). Under Clemons v. Shinseki, 23 Vet. App. 1 (2009), a claim for benefits based on PTSD encompasses benefits based on another acquired psychiatric disorder because the evidence developed during the processing of the claim indicated that the symptoms for which the claimant was seeking VA benefits may have been caused by another acquired psychiatric disorder. As such, the Board has identified the issue as set forth on the title page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The evidence of record, including in-service treatment for depression and anxiety, repeatedly refers to the Veteran's current acquired psychiatric diagnoses as being related to traumatic events from her childhood. A veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service; unless clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. See 38 U.S.C.A. § 1111. In this case, the claims file does not contain treatment records from the Veteran's first period of active duty. His August 2004 examination upon enlistment for his second period of active service noted no psychiatric abnormalities. The accompanying report of medical history, which was completed by the Veteran, indicated that she had never had nervous trouble of any sort. She specifically denied having received treatment or counseling of any type and she further denied any attempted suicide. The answers provided in this form are directly and repeatedly contradicted in the subsequent medical records. Indeed, the service treatment records dated in May 2005 include the Veteran's report that she had previously been on medication to treat her anxiety. Records from later that month refer to a long-standing history of depression symptoms that were treated with Zoloft and Prozac in the past. Service treatment records from June 2005 note chronic symptoms since childhood. During her VA mental health intake in September 2006, the Veteran reported consistent symptoms since she was fifteen years old. Additionally, the medical history she provided the June 2007 VA examiner included that of sexual abuse in 1992, hospitalization in 1996 in Florida for sexual abuse, and a suicide attempt in high school. Moreover, in a July 2009 statement accompanying her VA form 9, the Veteran stated that she had "mild depression" prior to active service. Thus, the subsequent medical history provided by the Veteran consistently discusses her pre-existing mental health conditions of anxiety and depression. The first prong rebutting the presumption of soundness, clear and unmistakable evidence of a pre-existing condition, is thus satisfied. The second prong for rebuttal is clear and unmistakable evidence that said condition was not aggravated by service. On this point, the record does not contain clear and unmistakable evidence. In this regard, the June 2007 VA examiner noted, "(i)t is possible that being harassed by fellow soldiers in Iraq had increased the Veteran's anxiety and depression. On a scale of 1 to 10, the Veteran's experiences in Iraq may have impacted her function in level by one point." As this opinion states that such aggravation is possible, the second prong of rebuttal is not satisfied and the presumption of soundness remains intact. Absent a rebuttal, the Veteran is then presumed sound. Therefore, the pertinent question for service connection is whether her current acquired psychiatric disorders are related to the psychiatric conditions diagnosed during her active duty military service. As the current medical examinations instead focus on the relationship between the Veteran's current psychiatric disorders and her childhood trauma, a new examination that addresses the possibility of a medical nexus between these current disorders and the psychiatric disorders diagnosed during the Veteran's military service is necessary. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination for the purpose of determining the nature and etiology of any current acquired psychiatric disorder(s), and specifically whether her military service is implicated. The claims file should be made available to the examiner and reviewed in conjunction with this examination. Any indicated studies should be performed. Following this, the examiner should address the following: a. Does the Veteran currently have an acquired psychiatric disorder or disorders? b. If so, the examiner is asked to provide an opinion on whether it is at least as likely as not (a 50 percent probability or more) that any diagnosed psychiatric disorder had its onset during service, was causally related to the psychiatric disorders diagnosed during service, or was otherwise caused by any incident that occurred during service. For the purpose of this inquiry, it is presumed that the Veteran was psychiatrically sound when she entered her periods of active service. The examiner should set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record. 2. Thereafter, readjudicate the claim on appeal in light of the additional evidence obtained. If the claim is not granted to the Veteran's satisfaction, send her and her representative a supplemental statement of the case and give them an opportunity to respond to it. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).