Citation Nr: 18158088 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 16-63 083 DATE: December 18, 2018 REMANDED Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with mixed anxiety and depressed mood, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1988 to April 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied entitlement to service connection for an acquired psychiatric disorder (characterized by the RO as adjustment disorder with mixed anxiety and depressed mood), bilateral pes planus, and sleep disorder. 1. Entitlement to service connection for a sleep disorder and bilateral pes planus are remanded. The Veteran claims that he has a sleep disorder and bilateral pes planus that are due to his military service. As to the Veteran’s pes planus, his May 1988 enlistment examination report, report of medical examination, reveals a normal clinical evaluation of the feet. The May 1988 examining physician explicitly noted normal arches. In the May 1988 enlistment examination report, report of medical history, the Veteran denied foot trouble. His April 1989 separation examination reports shows normal clinical evaluation of the feet. With respect to the Veteran’s sleep disorder, his STRs do not show complaints of a sleeping problem or diagnosis thereof. In a December 2015 VA mental health disorders examination, the examiner indicated that a sleep disorder diagnosis was not rendered. To this end, the December 2015 VA examination focuses on the Veteran’s mental health and does not appear to assess the Veteran’s sleep problems. In this case, the Veteran’s claims file does not contain any treatment records. In the Veteran’s July 2016 notice of disagreement, he suggested that he has experienced sleep and feet problems since service; however, he has been unable to seek medical treatment due to lack of medical coverage. The evidence of record suggests that the Veteran has persistent or recurrent symptoms of a sleep disorder and foot disorder may be associated with his military service. However, he has not been afforded a VA examination nor has an opinion been obtained to determine the etiology of his claimed disabilities. Accordingly, a remand is necessary to afford the Veteran a VA examination as to his claimed disabilities. See 38 U.S.C. § 5103A(d)(2) 38 C.F.R. § 3.159(c)(4)(i) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran claims that his acquired psychiatric disorder is related to his military service. The Veteran’s DD-214 Form shows that his character of service was discharged under honorable conditions. The narrative reason for separation was “misconduct- pattern of misconduct.” The Veteran’s military personnel records include a March 1989 record of proceeding under article 15 relating to stolen property; April 1989 mental status evaluation that shows that the Veteran has mental competent to understand in the proceedings; and a statement from the Veteran regarding his separation and his wrongdoings to include under ager drinking. The Veteran’s May 1988 enlistment examination report, report of medical examination, shows a normal psychiatric evaluation. His May 1988 enlistment examination report, report of medical history, he denied depression. In the April 1989 separation examination report, report of medical examination, clinical psychiatric evaluation was noted normal. In the April 1989 separation examination report, report of medical history, the Veteran checked the box nervous trouble of any sort. The examining physician noted that the Veteran nervous trouble was related to job stress. In December 2015, the Veteran was afforded a VA examination. During the examination, the Veteran reported that he began having difficulties with depressed mood and anxiety since his childhood. The examiner diagnosed adjustment disorder with mixed anxiety and depressed mood and opined that it is less likely than not that it is due to his military service. The examiner reasoned that the Veteran had significant pre-military psychosocial difficulties that continued while serving in the military. The examiner noted the Veteran’s reports that he brought his “street mentality” into the military and then the examiner found that the Veteran’s street mentality led to a pattern of misconduct in service, which caused his discharge. Every Veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. Here, the Veteran’s enlistment examination does not note any defect, infirmity, or disorder with respect to his psychiatric condition; therefore, the presumption of soundness applies. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (when no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry). If the presumption of soundness applies, the burden then shifts to “the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service.” Wagner, 370 F.3d at 1096. Accordingly, once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In this case, the evidence suggests that the Veteran may have had a pre-existing mental condition prior to service. For instance, during the December 2015 VA examination, the Veteran reported that he began having difficulties with depressed mood and anxiety since his childhood. Moreover, the examiner suggested that the Veteran may have had a psychiatric disorder in service, but that it began prior to service. Therefore, upon remand, a VA medical opinion should be obtained to determine whether there is clear and unmistakable evidence that the Veteran had an acquired psychiatric disorder that was both preexisting and not aggravated by service. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate physician to determine the nature and etiology of his claimed sleep disorder. The claims file must be sent to the examiner for review. The examiner should first identify whether the Veteran has a sleep disorder, approximately since the date of the Veteran’s claims in August 2015. If the Veteran has a diagnosis of a sleep disorder, or symptoms of a sleep disorder that impair earning capacity, then the examiner should indicate whether the disabilities had its onset in service or is otherwise related to service. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. 2. Schedule the Veteran for a VA examination with an appropriate physician to determine the nature and etiology of his claimed pes planus or any foot disorder. The claims file must be sent to the examiner for review. The examiner should first identify whether the Veteran has pes planus or any disorder of the foot, approximately since the date of the Veteran’s claims in August 2015. If the Veteran has a diagnosis of pes planus or any other disorder, or foot symptoms that cause impairment in earning capacity, then the examiner should indicate whether the disability had its onset in service or is otherwise related to service. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. 3 Refer the claims file to a psychiatrist or psychologist to determine the etiology of the Veteran’s acquired psychiatric disorder. The claims file, to include a copy of this remand, must be send to the psychiatrist or psychologist for review. The psychiatrist or psychologist must provide opinions addressing the following: a. first identify whether the Veteran had an acquired psychiatric disorder that clearly and unmistakably (i.e., obviously or undebatably) pre-existed service. In addressing the question above, the psychiatrist or psychologist should comment on the Veteran’s STRs and military personnel records and the December 2015 VA examination report. b. If the psychiatrist or psychologist determines that an acquired psychiatric disorder clearly and unmistakably pre-existed service, the psychiatrist or psychologist must state whether it is clear and unmistakable that the pre-existing disease or injury WAS NOT aggravated during service. c. Regardless of the answers to the above questions, is it at least as likely as not (i.e., probability of 50 percent or greater) that any current an acquired psychiatric disorder (diagnosed as adjustment disorder with mixed anxiety and depressed mood) is related to the Veteran’s military service. The psychiatrist or psychologist must provide reasons for each opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel