Citation Nr: 18156334 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-36 963 DATE: December 7, 2018 ORDER Entitlement to service connection for attention-deficit disorder with hyperactivity (ADHD) is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, other than ADHD, is remanded. FINDING OF FACT The legal presumption that the Veteran entered service in sound condition and free from any preexisting disability of ADHD had not been rebutted; his ADHD began during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for ADHD have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1974 to October 1975. He died in December 2016, and the appellant is his surviving spouse who has been properly substituted for the Veteran in accordance with the Veterans’ Benefits Improvement Act of 2008. See June 2017 decision (recognizing valid substitution of the appellant). 1. Entitlement to service connection for ADHD. The appellant, who has substituted the Veteran’s appeal, has presented statements asserting that the Veteran was presumed sound upon entry and that VA has not met its burden to show that his condition existed prior to service and was not worsened through that service. See July 2015 notice of disagreement (“I contend that my military records, which show months of exemplary behavior, proceeding any behavioral or disciplinary problems, support the in[-]service manifestation or worsening of my conditions.”) First, the Board notes that the Veteran has a current diagnosis of attention-deficit disorder with hyperactivity (ADHD). See March 2014 VA neuropsychological assessment consultation and April 2015 VA examination report. As this disorder is one that is capable of improving or deteriorating, it is considered a developmental disease (as opposed to a developmental defect), and is therefore, subject to the presumption of soundness and may be service connected as set forth in Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (quoting VA Gen. Coun. Prec. 82-90 (July 18, 1990)). Upon careful review of the service treatment records, the Board concludes that ADHD was not noted upon the Veteran’s April 1974 entrance examination report; it instead reflected a “normal” clinical psychiatric examination. Therefore, the presumption of soundness attaches. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that a disability was both preexisting and not aggravated by service, which cannot be done in this case. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Even assuming that clear and unmistakable evidence supports the preposition that the ADHD preexisted service, there is no clear and unmistakable evidence to support the second preposition that the ADHD was not aggravated by service. In this respect, the April 2015 VA examiner only found a “less likely than not” probability of aggravation in service: Per DSM5 “a substantial proportion of children with ADHD remain relatively impaired into adulthood” and demonstrate symptoms into adulthood (almost 66% per Weiss et al 2002). He was not receiving treatment so continued functional impairment was as likely. It is less likely than not that ADHD was permanently aggravated beyond its normal progression. See April 2015 VA addendum opinion (emphasis added). This is not type of undebatable evidence of a lack of aggravation that is needed to rebut the presumption of soundness. Moreover, the March 2015 VA examiner’s original opinion explained that “[s]ymptoms such as ‘impulsive, immature, egocentric’ and difficulty with minor rule infractions, as noted in his military rehab notes, could reasonably be attributed to ADHD. Thus[,] the impairment noted in his SMRs is more likely than not attributable to ADHD.” In looking at the in-service symptomatology, the Board finds it particularly significant that the Veteran was given a psychiatric evaluation in Miramar, California, which contained symptoms that were later attributed to ADHD by the VA examiner and which also served as the basis for his general discharge for “unsuitability” recommendation. This evidence suggests a worsening of symptoms and simply fails to demonstrate that there was any lack of aggravation in service, much less by the high evidentiary burden of clear and unmistakable evidence needed to rebut the presumption of soundness. Having determined that the Veteran was presumed sound upon entry into service, which has not been legally rebutted, and in light of the fact that the VA examiner was able to associate his in-service symptoms with his ADHD diagnosis, there is sufficient to establish that the disorder began during active service and continued prior to his death. As such, the appellant’s substituted claim for entitlement to service connection for ADHD is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for an acquired psychiatric disorder, other than ADHD, is remanded. First, only VA treatment records through January 2015 have been obtained although notes indicate that he received subsequent treatment relevant to the appeal and prior to his death in December 2016. See e.g., January 2015 VA treatment records (scheduling an audiology appointment for February 11, 2015). Additionally, VA treatment records reference an audiogram conducted in 2013, which should also be associated with the claims file. See December 2013 VA treatment report (“See recent audiogram and associated report available in CPRS.”); September 2013 VA treatment report (“Patient’s audiogram was reviewed demonstrating a bilateral sensorineural hearing loss with a significant low frequency component in the right ear”). Therefore, a remand is needed to obtain outstanding VA treatment records. Second, an August 2007 VA treatment report noted the Veteran “still works but presently on disability.” As he had not received any VA disability prior to the June 2016 rating decision’s grant of service connection benefits for tinnitus, it appears there may be potentially relevant Social Security Administration (SSA) records prior to his death that should be obtained. Additionally, now that the appellant has established service-connection for ADHD, an addendum opinion should be obtained to ascertain the likelihood that the Veteran’s other psychiatric diagnoses of depression and/or anxiety may have been caused or aggravated by his ADHD. See March 2014 VA treatment report (“history and current performance pattern are abnormal and consistent with a diagnosis of ADHD of the combined type persisting into adulthood [and t]here is comorbid anxiety and depression, which may be compounding the developmental ADHD”). The matters are REMANDED for the following actions: 1. Obtain the Veteran’s federal records from the SSA. Document all requests for information as well as all responses in the claims file. 2. Obtain the Veteran’s VA treatment records for the period from January 2015 through his death in December 2016. 3. Obtain the 2013 VA audiogram and report referenced in the September and December VA treatment reports. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s depression and/or anxiety was at least as likely as not related to proximately due to ADHD or was otherwise aggravated beyond its natural progression by ADHD. The examiner should provide a detailed rationale for any opinions given. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Gielow, Counsel