Citation Nr: 20006917 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-36 909 DATE: January 28, 2020 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty for training in the U.S. Army from February 1972 to July 1972 and on active duty from January 1974 to July 1975, with additional service in the National Guard. He passed away in January 2015. The appellant is his surviving spouse. The Board thanks the Veteran’s family for his service to the United States. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. In October 2018, the Board denied the claim currently at issue. The appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted a Joint Motion for Remand (JMR) in which the parties agreed that the Board erred by not addressing 38 U.S.C. § 1153. Specifically, the Board did not address whether the Veteran had a pre-existing psychiatric disability in light of the August 2013 VA examination finding that he struggled with some level of depression and anxiety beginning in childhood, and if so, whether any pre-existing psychiatric disabilities were aggravated during military service. The JMR further directed the Board to consider whether an additional medical opinion is warranted. As an initial matter, the Board notes that the case law is clear that 38 U.S.C. § 1153 does not apply to periods of ACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40, 48 (2010). With respect to the period of active duty beginning in 1974, although there is not an entrance examination of record for this period of service, the presumption of soundness attaches because the entrance examination is presumed destroyed. After review of the record, the Board finds that remand for a medical opinion is necessary. See 38 U.S.C. § 5103A (d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when the Secretary provides a medical opinion, it must be adequate for decisional purposes). The Veteran underwent a VA examination in August 2013. Since that time, evidence has been added to the claims file that was not considered by the previous examiner, including private medical records reflecting treatment for depression and additional lay statements from the Veteran’s surviving spouse and friend. Thus, the Board finds that a medical opinion is required to consider the additional evidence. The 2013 VA examiner noted that “the Veteran reported that he has struggled with at least some level of depression and anxiety all of his life, beginning in childhood” and also noted that per the Veteran’s report, his experiences in the military “further damaged his already low self-esteem and low confidence to the point where he did not know if he could properly function in the world.” The examiner also noted that it “does appear veteran had difficulty establishing himself in the world after his military discharge [noting he lived with his parents for many years working in various jobs and he did not do well in college].” The question of whether the Veteran had a preexisting psychiatric disorder, or manifestations of an acquired psychiatric disorder that worsened during military service, is a complex medical determination. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Although the Veteran reported having “some level of depression” in childhood, the record does not show that he had the complex medical knowledge required to diagnose a mental health condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The matter is REMANDED for the following actions: 1. Obtain an addendum medical opinion from a suitably qualified clinician regarding the nature and etiology of any acquired psychiatric disorder. The clinician is asked to review the claims file, and to opine on the following: (a) Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that a psychiatric disability existed prior to the Veteran’s entry into active duty service in 1974? If so, please identify the psychiatric disability. Please consider and discuss as necessary the Veteran’s reports of having depression and anxiety his entire life. (b) If the answer to part (a) above is yes, did the psychiatric disability undergo an increase in disability during the Veteran’s period of service from January 1974 to July 1975? Please consider and discuss as necessary the August 2013 examiner’s report that per the Veteran’s report, his experiences in the military “further damaged his already low self-esteem and low confidence to the point where he did not know if he could properly function in the world” and that the Veteran had difficulty establishing himself in the world after service. (c) If the answer to part (b) above is yes, it is clear and unmistakable (obvious) that the increase in disability was due to the natural progress of the disease? (d) If the answer to part (c) above is “no”, is it at least as likely as not that such disability caused or materially contributed to the cause of the Veteran’s death by suicide? A complete rationale should be provided for all opinions. The examiner is asked to consider and discuss all relevant evidence of record as necessary, including the VA examination report in August 2013, private medical records from Dr. P.D. showing that the Veteran reported having depression “all his life” in August 2009, military personnel records reflecting that the Veteran was counseled for going absent without leave in June 1973, the news article about the creation of a sexual assault awareness group at Fort Polk, Louisiana, and the lay statements from the Veteran (including those received in November 2012 and July 2013, describing his claimed in-service stressors), appellant (including those received in February 2013, January 2016, August 2018, and December 2019, describing her observations of the Veteran’s condition), friends (including those received in March 2016 and December 2019), and from the appellant’s representative (received in December 2019) when rendering his or her report. The examiner is reminded that the term “at least as likely as not,” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so   evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, Associate 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.