Citation Nr: 1601193 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 09-20 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran had active service from August 1973 to March 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which, in pertinent part, denied the Veteran's claim for a "mental condition (stress)." The Veteran's representative filed a claim for service connection for PTSD, which was denied in a September 2009 rating decision and, after issuance of the proper notice letter to the Veteran, denied again in a November 2009 rating decision. The claim was previously before the Board in September 2013. As explained in the September 2013 Board remand, the Board has characterized the claim before it as one of service connection for a psychiatric disorder, to include PTSD, in accordance with the United States Court of Appeals for Veterans Claims' (Court's) ruling in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In September 2013, the Board previously remanded the claim for development to include obtaining additional service records, VA treatment records, and an addendum opinion. Pursuant to the remand instructions, an examination was later conducted in March 2014. The Veteran provided a new stressor of seeing a man's face bleeding and reported having hallucinations/flashbacks and nightmares of this event. The examiner determined that the Veteran did not meet the criteria for PTSD. However, current diagnoses listed are unspecified neurodevelopmental disorder, adjustment disorder with anxiety, and unspecified personality disorder. The examiner opined that the Veteran clearly had mental health issues prior to the military to include intellectual deficits and anxiety. He added that the Veteran's pre-existing mental disorders (intellectual deficit with possible learning disability and/or ADHD issues and personality disorder) were less likely than not aggravated by his military service. This response is not adequate because the opinion addressed a different evidentiary standard than required. Applicable law and regulations provide that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). In this case, there was no pre-existing psychiatric disability noted on the July 1973 enlistment examination report. If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). Where the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim must be considered one for service incurrence or direct service connection. See Wagner, 370 F.3d at 1094-1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). Additionally, the May 2009 VA examination report included a diagnosis of mixed anxiety-depressive disorder. While the March 2014 VA examiner restated that the Veteran was diagnosed with depression related to medical issues as noted by the May 2009 VA examiner, there was no further discussion regarding whether the Veteran currently has depression or whether the depressive disorder noted in May 2009 is related to service. In light of the deficiencies in the March 2014 VA opinion, an addendum opinion is warranted. Accordingly, the case is REMANDED for the following actions: 1. Return the claim file to the examiner who conducted the March 2014 examination for an additional addendum opinion. If the March 2014 examiner is no longer available, a similarly qualified examiner must provide the requested opinion. No additional examination is required unless deemed necessary by the examiner. The examiner must provide an explanation for all opinions expressed. (a) The examiner must provide an opinion as to whether any current mental disorder clearly and unmistakably (i.e., undebatable) pre-existed military service. (b) If pre-existence is demonstrated clearly and unmistakably, the physician should then opine whether the disorder was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression of the disease) during military service. If it is found that there is clear and unmistakable evidence that the Veteran's mental disorder existed prior to service AND that there is clear and unmistakable evidence that the condition was not aggravated by service, the physician should indicate the evidence supporting his/her conclusions. (c) For any currently diagnosed mental disorder that did not clearly and unmistakably pre-exist military service OR any preexisting disability for which there is no clear and unmistakable evidence that the condition was not aggravated by service, the physician must take as conclusive fact that the Veteran was sound on entrance into the military. After presuming such, the physician should then opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any currently diagnosed mental disorder is related to his active military service. The examiner's report must reflect consideration of the Veteran's entire documented mental history and assertions and all lay evidence, including the Veteran's statements regarding events in service and symptoms since discharge. 2. Finally, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claim is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).