Citation Nr: 18150834 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-44 299 DATE: November 15, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression, is remanded. REASONS FOR REMAND The Veteran had active duty from August 1959 to October 1963 with prior active duty for training (ACDUTRA) from June 1959 to August 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction over the Veteran’s file has subsequently been transferred to the RO in Winston-Salem, North Carolina. In July 2016, the Board denied service connection for residuals of a left-hand gunshot wound, residuals of a left-shoulder gunshot wound, and chronic obstructive pulmonary disease (COPD) and remanded service connection claims for a bilateral hand disorder, a bilateral knee disorder, a bilateral foot disorder, and an acquired psychiatric disorder. In September 2017, the Board, denied service connection for an acquired psychiatric disorder and remanded service connection claims for the a bilateral hand disorder, a bilateral knee disorder, and a bilateral foot disorder. In June 2018, the United States Court of Appeals for Veterans Claims (Court) Joint Motion for Remand (Joint Motion), vacated the Board’s September 2017 denial of service connection for an acquired psychiatric disorder and remanded the matter to the Board for further action. The service connection claims for a bilateral hand disorder, a bilateral knee disorder, and a bilateral foot disorder have not been recertified to the Board and will be the subject of a future decision. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for an acquired psychiatric disorder, to include depression, is remanded. The Veteran seeks service connection for depression. The Veteran’s attorney representative acknowledges that while the Veteran has reported symptoms of depression prior to service, such was not noted upon entrance into service and the record is absent clear and unmistakable evidence that depression preexisted service and was not aggravated during service. See, e.g., Brief (October 2018). In July 2016, the Board requested a medical opinion on the question of pre-existence of a psychiatric disorder. On VA examination in June 2017, the Veteran reported pre-military depression as a teenager. A contemporaneous Medical Opinion Disability Benefits Questionnaire, shows that the examining clinician checked a box stating that “[t]he claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.” The examiner reasoned that it is less likely than not that the Veteran’s psychiatric was aggravated during active duty. In September 2017, the Board denied entitlement to service connection for an acquired psychiatric disorder based on the examiner’s negative opinion. In June 2018, the Court, by way of Joint Motion, vacated the Board’s denial and remanded. The Court reasoned that the June 2017 VA medical opinion is inadequate to the extent that the examiner failed to conclusively determine whether the Veteran clearly and unmistakably suffered from an acquired psychiatric disability prior to service. Indeed, as depression was noted upon entrance into service, the presumption of soundness applies, unless there is (1) clear and unmistakable evidence that a psychiatric disorder preexisted service; and (2) clear and unmistakable evidence that such disorder was not aggravated by service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Absent an adequate medical opinion to this point, further medical development is needed. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current psychiatric disorder, to include major depressive disorder. (a) The examiner must opine whether any psychiatric disorder clearly and unmistakably (undebatable) preexisted the Veteran’s service. (b) For any disorder that clearly and unmistakably preexisted service, the examiner must opine whether it is also clear and unmistakable (undebatable) that such disorder was not aggravated by service. If the examiner finds either (a) or (b) debatable, the examiner must opine whether it is at least as likely as not that such disorder is related to an in-service injury, event, or disease. Supporting reasons and bases must be provided for all opinions reached. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel