Citation Nr: 1338223 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 10-20 359 ) 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, to include major depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from August 1962 to October 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim for service connection for an acquired psychiatric disorder. The Board notes that the Veteran also perfected an appeal for claims for service connection for bilateral hearing loss and tinnitus. However, a subsequent rating decision in April 2010 granted the claims for service connection for bilateral hearing loss and tinnitus. These grants represent full grants of the benefits sought on appeal for these issues, and therefore, these issues are not before the Board. 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 Although the Board regrets the additional delay, after a review of the record, further development is required prior to adjudicating the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder. The Veteran contends that he has major depressive disorder that was incurred in service or if pre-existed service was aggravated during his period of service. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this case, although the Veteran reported depression and excessive worry on enlistment examination, the evidence of record does not show that the Veteran had an actual diagnosis of an acquired psychiatric disorder noted upon entry into service. Therefore, the presumption of soundness attaches with respect to this portion of the claim, see 38 U.S.C.A. § 1111, and the burden is on VA to rebut the presumption by clear and unmistakable evidence that the disorder was both pre-existing and not aggravated by service. On VA examination in January 2010, the Veteran reported being sexually abused by a male friend of the family when he was 12 years old. The examiner noted that the Veteran's enlistment examination indicated a history of depression. He also acknowledged that the Veteran's service treatment records showed that he was hospitalized for about 3 weeks in 1964 after taking an overdose of medication because he was "disenchanted" with the hospital and its personnel. The Veteran was noted to have had some symptoms of depression for about six months. He was returned to full duty after being released from the hospital and was diagnosed with barbiturate poisoning and drug intoxication. The Veteran himself reported that he had received ongoing treatment for depression since 1979, but the examiner noted that there were no records in the Veteran's claims file to suggest any treatment for depression prior to 2003. Upon examination, the January 2010 VA examiner diagnosed the Veteran with mild, recurrent major depressive disorder, and alcohol dependence in full-sustained remission. He opined that the Veteran's major depressive disorder was less likely as not caused by or a result of service. The examiner explained that the Veteran's records demonstrated a history of depression prior to his period of service. Although the Veteran claimed that he became depressed because of service, the records and history indicated that he had had depression prior to service and more likely than not dating back to the time he was sexually abused at the age of 12. The examiner found that while the Veteran had a history of having been hospitalized in service because he was disenchanted with the hospital where he worked and the people that he worked with, there was no evidence to suggest that the Veteran's service permanently aggravated his underlying depression. The examiner also noted that there were no records suggesting that the Veteran had received any treatment for depression until 2003, and that by the Veteran's own accounts, he did not receive any mental health treatment until 1979, which would have been 15 years after discharge from service. The examiner explained that during the first 15 years after discharge from service, the Veteran had reported being a heavy drinker of alcohol, and therefore any mood symptoms at that time would have likely been attributed to the abuse of alcohol. The Board acknowledges that the January 2010 VA examiner essentially found that the Veteran's psychiatric disorder had pre-existed service and was not aggravated by service. However, VA regulations pertaining to the rebuttal of the presumption of soundness require the highly stringent standard of clear and unmistakable evidence that the veteran's disease or injury existed prior to service and clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. Thus, the Board finds that the examiner should reconsider his opinion in light of the foregoing standard. Given the above, the claims file should be returned to the January 2010 examiner, if available, in order to obtain an opinion regarding whether the Veteran's acquired psychiatric disorder clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated beyond the natural progress of the disorder during service. The Board also finds that mental health records and clinical records on the Veteran's hospitalization should be specifically requested and obtained if in existence and available. Accordingly, the case is REMANDED for the following action: 1. Contact the NPRC or any other appropriate custodian and specifically request hospitalization/clinical and mental health records pertaining to treatment the Veteran received in September 1964 and October 1964 from the U.S. Naval Hospital in Philadelphia, PA. If such records are nonexistent or unavailable, the record should be annotated to reflect this. 2. Return the claims file to the examiner who conducted the January 2010 VA psychiatric examination for an addendum opinion, if available. The examiner should once again review the claims file. Based on the review of the record and in light of the examiner's previous findings and statements the Veteran made in his May 2010 letter, the examiner should determine: (a) Is it clear and unmistakable (i.e., highest degree of medical certainty) that the Veteran entered active military service with a pre-existing acquired psychiatric disorder? (b) If yes, is it clear and unmistakable (i.e., highest degree of medical certainty) that the Veteran's pre-existing acquired psychiatric disorder WAS NOT aggravated beyond the natural progress of the disorder by his active military service? In other words, please determine whether it is clear and unmistakable that there was no increase in disability during service or that it is clear and unmistakable that any increase in disability was due to the natural progress of the pre-existing condition. (c) If the Veteran DID NOT clearly and unmistakably (i.e., highest degree of medical certainty) enter active military service with a pre-existing acquired psychiatric disorder, is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current acquired psychiatric disorder is etiologically related to any symptomatology noted during such service? The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. In comparison, "clear and unmistakable evidence" means "with a much higher certainty than 'at least as likely as not' or 'more likely than not.'" The examiner should explain the medical basis for the conclusions reached. In rendering his opinion, the examiner must consider the Veteran's statements regarding his disability, as the Veteran served as a medical professional (Medical Corpsman) during his period of service. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the previous examiner is no longer available, then the requested opinion with rationale should be rendered by another qualified examiner. 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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. 2012). _________________________________________________ TANYA A. SMITH 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) (2012).