Citation Nr: 1802166 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 17-31 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service Connection for mood disorder, not otherwise specified, and polysubstance dependence (claimed as depression). 2. Entitlement to service connection for human immunodeficiency virus (HIV). REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Keogh INTRODUCTION The Veteran served on active duty from October 1979 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in August 2017. A transcript of that hearing is of record. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Regarding the Veteran's claim to service connection for an acquired psychiatric disability, the Board notes that on VA examination in October 2012, the examiner opined that it was less likely than not that the Veteran's depressive disorder not otherwise specified (NOS) was caused by or aggravated by his service-connected disabilities. The examiner stated that the Veteran's mood disorder likely predated military service as he had inpatient treatment as a teenager prior to military service for behavioral problems and mood disturbance. The Board notes that this conclusion is consistent with the Veteran's report upon entry into service that he had a history of excessive worry. The examiner further stated that the Veteran's post-military stressors are likely to account for his post-military depression. The Board is concerned, however, that the October 2012 VA examiner did not address the Veteran's contention that he was subjected to harassment on the basis of his sexual orientation during active duty service. Notably, the provisions of 38 U.S.C. § 1111 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 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. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). A pre-existing injury or disease noted at entry will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The provisions of 38 C.F.R. § 3.306 (b) provide that aggravation may not be conceded unless the pre-existing condition increased in severity during service. An important distinction between section 1111's aggravation prong of the presumption of soundness and section 1153 presumption of aggravation is the burden of proof. Under section 1111, the burden is on the Government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Under section 1153, however, the Appellant bears the burden of showing that his preexisting condition worsened in service. Once the veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2016). The Board finds that further development is warranted so an examiner can provide an opinion as to whether any psychiatric disability clearly and unmistakably preexisted service, and if so, whether such disability was clearly and unmistakably not aggravated by service. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Once the aforementioned development has been completed, the RO should schedule the Veteran for an examination to determine the nature and etiology of any currently present psychological disorders. For any diagnosed disorder, the examiner should provide the following opinions: a) Is there clear and unmistakable evidence that the Veteran had a psychiatric disorder which pre-existed service? If so, is there clear and unmistakable evidence that the psychiatric disorder was not permanently aggravated beyond its natural progress during the Veteran's active service? b) As to any disorder that did not preexisted service, is it at least as likely as not (50/50 probability or greater) that the Veteran's psychiatric disorder was caused by or is the result of his service? c) If a diagnosis of a personality disorder is warranted, was the disorder subject to any superimposed disease or injury in service? d) Discuss any potential impact of harassment or bullying during active duty service in terms of causing or aggravating any diagnosed psychological disorder. In making these determinations, the examiner should specifically address the October 2012 VA examination. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. If, and only if, the agency of original jurisdiction finds that service connection is warranted for a psychiatric disorder, a medical opinion should be obtained as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's HIV was caused or aggravated by such disability. 4. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).