Citation Nr: A19001571 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 181129-1361 DATE: September 26, 2019 REMANDED Entitlement to service connection for major depression is remanded. Entitlement to service connection for schizophrenia is remanded REASONS FOR REMAND The Veteran served on active duty from October 23, 1991 to November 8, 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2018 rating decision of the Department of Veterans Affairs (VA). In May 2018, the Veteran elected to have all eligible appeals reviewed under the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). The Veteran selected the Higher-Level Review lane when he opted in to the Appeals Modernization Act review system by submitting a Rapid Appeals Modernization Program election form. In October 2018, the AOJ issued a Higher-Level Review (HLR) rating decision noted above. The Veteran timely appealed the October 2018 HLR decision to the Board and requested an “evidence submission” appeal to the Board in November 2018. The Board may consider evidence through the date of the election into the RAMP system as well as any evidence received during the 90-day period following submission of the November 2018 selection form. In the October 2018 HLR decision, the AOJ determined that new and relevant evidence had been submitted sufficient to readjudicate the previously denied claims for service connection for major depression and schizophrenia. As the AOJ has already determined that new and relevant evidence has been submitted as to these claims, the Board need not address new and relevant evidence herein. 84 Fed. Reg. 138, 189 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 20.801). Entitlement to service connection for major depression and entitlement to service connection for schizophrenia are remanded. A Veteran is presumed in sound mental health when entering the military, except for conditions noted during his enlistment examination. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Absent this notation, to rebut this presumption of soundness at service entrance, there must be clear and unmistakable evidence both that he had a pre-existing disorder and that it was not aggravated during his service beyond its natural progression. VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 38 C.F.R. § 3.303(c), however, indicates that in regard to disabilities first noted in service, there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established no additional or confirmatory evidence is necessary. Section 3.303(c) goes on to indicate this determination includes situations where the manifestation of symptoms of chronic disease from the date of enlistment, or so close thereto, that the disease could not have originated in so short a period will establish pre-service existence thereof. By way of background, at the Veteran’s June 1990 medical examination at entrance, he did not report a preexisting psychiatric condition and no such condition was noted. The entrance examination was normal in this regard. Thus, the Veteran is presumed to have been in sound condition with respect to any psychiatric disorder. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A service treatment record dated in November 1991 reflects that the Veteran was referred to the Recruit Examination Unit because he refused to train. The treatment note reflects that he could not stand being yelled at and reported that since his arrival to service, he claimed having a depressed mood, insomnia and difficulty concentrating. He claimed suicidal thoughts for one week; though there was no past history of suicidal behavior and he denied prior psychiatric contact. It was noted that the Veteran had a long history of behavioral problems. Upon a mental examination, the Veteran was noted as alert, oriented, calm without signs of thought disorder, major affective illness of significant anxiety. No Axis I mental disorder was diagnosed. An administrative separation for personality disorder was recommended. Post service treatment records show that a private treatment note dated in February 1999 reflects a diagnosis of recurrent major depression. A Lake Charles Memorial Hospital note dated in June 2013 shows that a diagnosis of chronic schizophrenia. A Lake Charles Memorial Hospital note dated in February 2014 shows that a clinical impression of depression. The Veteran was afforded a VA mental disorders examination in February 2018, at which time the VA examiner provided a diagnosis of continuous schizophrenia. The VA examiner opined that the Veteran did not have a diagnosis of depression, a diagnosis of paranoid schizophrenia and/or a diagnosis of mental illness that were at least as likely as not incurred in or caused by the suicidal and homicidal thoughts during service. The VA examiner stated that the Veteran’s records showed, by the Veteran’s reports, that he was diagnosed with schizophrenia at the age of 17 and had to drop out of college because of his schizophrenia, before entering the military. The VA examiner noted that the Veteran’s records showed that he was not having suicidal thoughts during service, but rather was using a threat of suicide as a means of getting out of the military. His records indicated that his schizophrenia predated his military service. There was no evidence that the Veteran’s schizophrenia was exacerbated beyond its natural progression by this his military service. Here, it is unclear on what basis the VA examiner drew the conclusion that a current psychiatric disorder preexisted service. For this reason, the Board finds the VA examination rationales inadequate. Thus, a new examination is warranted to determine if the Veteran’s psychiatric disorders clearly and unmistakably preexisted his service and clearly and unmistakably were not aggravated during service or had their onset at that time. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: Schedule the Veteran for a VA mental disorders examination to determine the nature and etiology of his claimed major depression and schizophrenia disabilities. All indicated studies must be performed, and all findings reported in detail in the examination report. The electronic claim file must be made available to and reviewed by the examiner. Based on the review of the record, the examiner is asked to specifically address the following: a) Did the Veteran have a major depression and/or schizophrenia disability prior to his entry into military service in October 1991? b) If so, is the evidence clear and unmistakable (undebatable) that such a disorder existed prior to service? (Identify such clear and unmistakable evidence or medical principle that supports this conclusion.) Please provide a description of the symptoms associated with the disability, and discuss whether these symptoms were present, or had manifested at, or close in time, to the Veteran’s enlistment. Also, provide an opinion as to whether the evidence is clear and unmistakable (undebatable) that the diagnosed major depression and schizophrenia disability did not undergo a permanent increase in severity during the Veteran’s period of service. If there was a permanent increase, state whether the evidence is clear and unmistakable (undebatable) that the permanent increase in severity during service was due to the natural progress of the condition. c) For any disorder found not to have preexisted service, opine whether is it at least as likely as not (50 percent probability or greater) that any diagnosed disorder, to include major depression and schizophrenia, had its onset in service or is otherwise related to service. In providing the requesting opinions, the examiner must consider and discuss the Veteran’s statements regarding the onset and progression of all pertinent symptomatology. The examiner should also consider any psychiatric diagnosis raised by the record. A complete rationale for any opinion expressed is required. DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.