Citation Nr: 1802652 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-26 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to January 1972, with confirmed service in the Republic of Vietnam and additional service in the Army Reserve and Air Force Reserve. This matter is on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In April 2013, the Veteran provided testimony at a Travel Board hearing. A transcript of the hearing is of record. In February 2014 and September 2017, the claim was remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, the Board finds that further remand is warranted. The Veteran contends that he has a current psychiatric disability that is related to events that he experienced while serving in Vietnam. He has been diagnosed as having depressive disorder and unspecified anxiety disorder. VA examiners in September 2010 and in March 2014 declined to diagnose PTSD. The March 2014 VA examiner concluded that the Veteran's psychiatric disorder clearly and unmistakably pre-existed prior to service but was not aggravated beyond its natural progression in service. In an October 2017 report, the same VA examiner who conducted the March 2014 examination, opined that the Veteran's clear and convincingly pre-condition of depression was less likely as not aggravated by his military service. The examiner noted that the Veteran had some pre-military issues that led to some depression prior to military service and following military service. The examiner reported that the Veteran was not noted to have a mental health issue in the military. A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When no preexisting condition is noted upon examination for entry into service, a Veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. Therefore, to rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a Veteran' s disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. Id.; see also VAOPGCPREC 3-2003. In this case, there were no psychiatric issues noted on entrance into active duty. As such, on remand, the Veteran should be provided with a VA examination to determine whether he has a psychiatric disorder that preexisted, is due to, or was incurred during the Veteran's active duty service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of all diagnosed psychiatric disorders. All indicated tests and studies should be conducted. The claims file and this remand must be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum. After diagnosing any current psychiatric disabilities, the examiner should opine as to: a) Whether the evidence clearly and unmistakably shows that any diagnosed psychiatric disorder existed prior to service (please note the standard of clearly and unmistakably is a very high standard and the evidence that a disability pre-existed service must be undebatable to meet this standard) b) If the answer to (a) is yes, the examiner must determine whether the evidence clearly and unmistakably shows that the diagnosed psychiatric disorder(s) was (were) not permanently worsened during service beyond the natural progression of the disorder; c) If the answer to (a) is no, the examiner must opine as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any diagnosed psychiatric disorder(s) is (are) otherwise causally related to any event, injury, or disease during service. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The absence of evidence of treatment for a psychiatric disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 2. If the benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, 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 (West 2012). JOHN J. CROWLEY 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) (2017).