Citation Nr: 18154467 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 14-28 551A DATE: November 30, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include anxiety and depression is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1990 to March 2003. In its December 2016 decision, the Board remanded the issues of entitlement to service connection for a bilateral knee disability, entitlement to service connection for a lumbar spine disability, entitlement to service connection for an acquired psychiatric disability, and entitlement to an increased rating for a left elbow disability. In a September 2018 rating decision, the RO granted service connection for a lumbar spine disability, a left knee disability, and a right knee disability. As the September 2018 rating decision constitutes a full grant of the benefits sought on appeal with regard to the issues of entitlement to service connection for a low back disorder, a right knee disorder, and a left knee disorder, those issues are no longer before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue of entitlement to an increased rating for a left elbow disability was remanded by the Board in December 2016 in order to obtain a statement of the case with regard to that issue, as the Veteran had filed a timely notice of disagreement to the August 2014 rating decision which granted service connection and assigned a noncompensable rating. In a June 2018 rating decision, the RO granted an initial rating of 10 percent for the Veteran’s left elbow fracture. Thereafter, in September 2018, the RO issued a statement of the case with regard to the issue of entitlement to an increased rating for a left elbow fracture. The Veteran did not file a timely substantive appeal to the September 2018 statement of the case; accordingly, the issue of entitlement to an initial rating greater than 10 percent for a left elbow fracture is not properly before the Board. Entitlement to service connection for an acquired psychiatric disability, to include anxiety and depression is remanded. The Veteran contends that he currently has an acquired psychiatric disability that began during service. VA treatment records dated from 2014 through 2016 reflect diagnoses of and treatment for posttraumatic stress disorder (PTSD) due to childhood trauma, mood disorder, depression, panic disorder, and anxiety disorder. In July 2014, the Veteran underwent a VA psychiatric examination. The examiner diagnosed stressor related disorder (sexual abuse during childhood), unspecified alcohol related disorder, and cannabis use disorder. The examiner opined that the Veteran’s PTSD stressor occurred prior to military service, and that there was no objective evidence of aggravation during service. In an August 2014 statement of the case, the RO continued the denial of the Veteran’s claim on the basis that his psychiatric disorder pre-existed military service and was not permanently aggravated thereby. 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. Review of the claims file reflects that the Veteran’s service treatment records are incomplete. Neither the Veteran’s entrance examination nor his separation examination are in the claims file. There is no indication that the Veteran’s complete service treatment records are not available, or that the RO took appropriate measures to obtain the complete records. Accordingly, the RO must make additional efforts to obtain the Veteran’s complete service treatment records, to include entrance and separation examinations. The basis for the RO’s conclusion that the Veteran’s acquired psychiatric disorder pre-existed his military service is unclear as the Veteran’s service entrance examination is not of record and there is no evidence confirming that an acquired psychiatric disability clearly and unmistakably existed prior to military service. Additionally, the VA treatment records document other diagnosed psychiatric disabilities, and the July 2014 VA examination did not address the etiology of these disabilities. Accordingly, a new VA examination is warranted after the RO obtains the Veteran’s complete service treatment records. The matter is REMANDED for the following action: 1. The RO should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), the Veteran’s unit, and any other appropriate location, to request the complete service treatment records for the Veteran for his period of service from January 1990 to March 2003. As set forth in 38 U.S.C. § 5103A(c)(2) and 38 C.F.R. § 3.159(c)(2), the RO should continue efforts to locate such records until it is certain that such records do not exist or that further efforts to obtain those records would be futile. The Veteran should be notified of any action to be taken. 2. After the Veteran’s complete service treatment records have been obtained and associated with the claims file, schedule the Veteran for a new VA psychiatric examination to determine the etiology of all diagnosed psychiatric disabilities demonstrated proximate to or during the appeal period, including PTSD, depression, anxiety disorder, panic disorder, mood disorder, and any others. The claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be completed. Following review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a.) Identify all psychiatric disabilities demonstrated of record since service, even if resolved, as well as all psychiatric disabilities demonstrated on current clinical examination; (b.) Is there clear and unmistakable evidence that any diagnosed psychiatric disorder existed prior to military service (please note the standard for clear and unmistakable evidence is a very high standard and the evidence that a disability pre-existed service must be undebatable to meet this standard. Generally, the Veteran’s lay statements are insufficient to rebut the presumption of soundness); (c.) If the answer to (b) 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; (d.) If the answer to (b) is no, for each psychiatric diagnosis identified on examination, and to specifically include PTSD, depression, anxiety disorder, panic disorder, and mood disorder, the examiner must opine whether it is at least as likely as not (50 percent probability or more) that the disability manifested in service or is otherwise causally or etiologically related to any event in military service. A complete rationale must be provided for each opinion rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, during military service, 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. (Continued on the next page)   3. Thereafter, readjudicate the issue on appeal, considering all evidence of record. If any benefit sought is not granted to the fullest extent, issue a Supplemental Statement of the Case and afford the Veteran and his representative an appropriate opportunity to respond. The case should be returned to the Board, as warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Katz, Counsel