Citation Nr: 20009746 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 17-51 184 DATE: February 5, 2020 REMANDED The claim for service connection for depressive disorder is remanded. REASONS FOR REMAND The Veteran had active service in the Air Force from October 1968 to November 1969. His military specialty (MOS) was air traffic control (ATC). The Board notes that the Veteran filed a VA Form 21-22 that was received in May 2017 appointing the DAV as his representative, replacing the American Legion. Unfortunately, it appears that the American Legion continued to be treated as his representative during this time. Given the fact that the Board has determined that a remand in warranted in this case, the failure to obtain an Informal Hearing Presentation from the DAV is considered to be a harmless error, as the Veteran is not prejudiced by the remand. However, on remand, the Veteran’s representation should be clarified. The Veteran is seeking service connection for a depressive disorder, which he believes, onset during his military service. The Veteran was afforded a VA examination in January 2017, at which the examiner diagnosed him with unspecified depressive disorder, and opined that his depressive disorder, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression during service because while it was likely that the stress related to the service exacerbated his mental health symptoms at that time, there was no evidence that his service aggravated his mental health symptoms beyond their natural progression. Service treatment records (STRs) show that the Veteran’s enlistment physical dated April 1968 noted normal psychiatric condition, although the Veteran did report having, or having previously had, depression or excessive worry on his Report of Medical History in conjunction with his enlistment physical. In May 1969, the Veteran denied any nervous trouble of any sort at a Medical Examination for the Flying Duty and he was found to be qualified for Air Traffic Controller (ATC) duties. Hence, it is not clear whether there was clear and unmistakable evidence showing that the Veteran’s depressive disorder existed at the time of his enlistment. Further development is warranted. STRs also shows, that from the end of May 1969, the Veteran start seeking treatment for mental conditions. In May 1969, he reported poor sleep, as a result of worrying about his young daughter’s health. He was prescribed with medication at that time. In June 1969, he sought treatment for nervousness and anxiety due to personal relationship with his wife and another woman (having gotten both women pregnant at the same time). The medical officer found no evidence of depression or thought disorder, and diagnosed him with acute situational mal-adjustment in a compulsive personality with asocial traits. In July 1969, the medical officer issued a letter stating that the Veteran had been treated since May 1969 for nervous problems arising from his continued family problems, which he had been unable to solve because of his separation from his family. Therefore, the officer recommended that the Veteran to be reassigned to a base closer to his family. In September 1969, the Base Flight Medical Officer permanently restricted the Veteran form from his duties as an Air Traffic Controller due to lack of emotional stability. The Veteran’s separation physical in November 1969 found him to be psychiatrically normal, but the medical officer noted frequent trouble sleeping, excessive worry, and nervous trouble. Given the above evidence, the January 2017 examiner acknowledge that it was likely that the stress related to the service had exacerbated the Veteran’s mental health symptoms during service, but opined that there was no evidence that his service aggravated his mental health symptoms beyond their natural progression. The examiner did not explain why the exacerbated symptoms were not the evidence of permanent aggravation during service. Therefore, further development is warranted. VA treatment records show that the Veteran requested medication for nerve and tension in June 1980. In his claim for service connection for depression in October 1993, the Veteran stated that the onset of his depression/insomnia was in September 1993. Private records show that he sought mental health treatment in August 1983, reporting being stressed about relationship with his girlfriend, who he had involved for over 15 months, and inability to find a job. He reported having been released from prison in 1991 after serving over four years, having been convicted of manslaughter for causing the death of his wife. The doctor diagnosed him with major affective disorder (depressed). In September 1993, he was again diagnosed with effective disorder (depressed), adult antisocial behavior, marijuana abuse, unspecified personality disorder. As such, evidence is not clear whether the Veteran’s psychiatric disorder, which was diagnosed as major affective disorder (depressed) in 1993 was related to his depression symptom noted during service. Further development is warranted. Therefore, the matter is REMANDED for the following action: 1. Send the Veteran a letter to clarify which service organization currently represents him. 2. Obtain VA treatment records from June 1980 to the present. 3. Obtain a VA psychiatric examination. The examiner should identify any diagnosis of the Veteran’s current psychiatric conditions, and answer the following questions: (a) Is it clear and unmistakable (obvious and manifest) that the Veteran had a psychiatric disability that existed prior to his military service? Why or why not? In doing so, the examiner should address (1) the enlistment physical in April 1968 showing normal psychiatric condition, (2) the Veteran’s report of depression or excessive worry at the time of his enlistment on the Report of Medical History, and (3) the Veteran’s denial of any nervous trouble at the Medical Examination for the Flying Duty dated May 1969 which qualified the Veteran for Air Traffic Controller duties. (b) Is it clear and unmistakable (obvious and manifest) that a psychiatric disability which pre-existed service, was not permanently aggravated by his military service, meaning that any worsening was not beyond the natural progression of the disability? Why or Why not? In doing so, the examiner should address (a) the STRs showing the Veteran sought treatment for trouble sleeping and mental distress on multiple occasions, (2) the personnel action by medical officer in September 1969 to permanently restricted the Veteran form from his duties as an Air Traffic Controller due to lack of emotional stability (obtained in a 34 page document entitled “Military Personnel Record” with a receipt date of 8/19/2016) , and (3) the separation physical showing normal psychiatric condition but noting frequent trouble sleeping, excessive worry and nervous trouble. (c) If the answers to either question (a) or (b) above is “no”, then the examiner should determine whether it is at least as likely as not (50 percent or greater) that the Veteran’s current psychiatric condition either began during or was otherwise caused by his military service? Why or Why not? In doing so, the examiner should address (a) the STRs showing the Veteran sought treatment for trouble sleeping and mental distress on multiple occasions, (2) the separation physical showing normal psychiatric condition but noting frequent trouble sleeping, excessive worry and nervous trouble, (3) the VA treatment records showing that the Veteran requested medication for nerve and tension in June 1980 (obtained in a document entitled “VA10-10 Forms (10-10EZ, 10-10SH, Etc.” with a receipt date of 6/30/1983); and (4) private records showing a diagnosis of affective disorder in August and September 1993 (obtained in a document entitled “Medical Treatment Record-Non-Government” with an receipt date of 2/8/1994). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.