Citation Nr: 21000460 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-40 436 DATE: January 5, 2021 REMANDED Service connection for a psychiatric disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from November 1976 to March 1978. This matter is on appeal from an August 2012 rating decision. In a May 2018 decision, the Board remanded this issue to attempt to obtain additional records and to afford the Veteran a VA examination.  The Board will discuss the compliance of the Agency of Original Jurisdiction (AOJ) with its instructions below.  See Stegall v. West, 11 Vet. App. 268 (1998).  1. Service connection for a psychiatric disability is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in December 2019 by a psychologist who found that the Veteran had a history of psychiatric symptoms that predated his active duty service. The Board also notes that, during an October 2009 VA treatment appointment, the Veteran reported a lifelong history of psychiatric symptoms, including a history of social anxiety and irritability since his early teens. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disabilities 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 (2012). Only such conditions as are recorded in examination reports are to be considered as “noted.” 38 C.F.R. § 3.304 (2019). A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). At the time of the Veteran’s November 1976 entrance examination, the examining clinician found the Veteran to be psychiatrically normal. The presumption of soundness therefore attaches with respect to this issue. The question before the Board, then, is whether clear and unmistakable evidence demonstrates that the Veteran’s psychiatric disability existed before entry and was not aggravated by such service, so as to rebut the presumption of soundness. Because neither the December 2019 VA psychologist nor the October 2020 private psychologist provided an opinion with regard to this question, a remand is warranted to obtain an adequate nexus opinion. The matters are REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of the Veteran’s psychiatric disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new physical or telehealth examination is only required if deemed necessary by the clinician. The clinician must provide opinions as to the following: a) Whether the Veteran’s psychiatric disability clearly and unmistakably existed prior to his active duty service. b) If the answer to a) is yes, whether the Veteran’s psychiatric disability was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. c) If the answer to a) or b) is no, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s psychiatric disability began during active service or is related to an incident of service. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. The Veteran’s November 1976 entrance examination, during which he denied a history of psychiatric symptoms and the examining clinician found him to be psychiatrically normal. b. An August 1977 service personnel record noting that the Veteran was absent without authority for a period of five days. c. A January 1978 psychiatric evaluation report and the resulting February 1978 service personnel record recommending discharge. d. An October 2009 VA treatment record noting the Veteran’s report of a lifelong history of psychiatric symptoms, including a history of social anxiety and irritability since his early teens. e. A January 2010 examination report including diagnoses of schizoaffective disorder and panic disorder with agoraphobia. f. A May 2012 VA treatment record including a diagnosis of schizophrenia, paranoid type. g. The Veteran’s January 2019 statement regarding his in-service stressors. h. The December 2019 VA examination report, including findings that the Veteran’s history of psychiatric symptoms predated his active duty service. i. An August 2020 statement by the Veteran’s spouse regarding the onset and continuity of the Veteran’s psychiatric symptoms. j. The Veteran’s August 2020 statement regarding the onset, nature, and continuity of his psychiatric symptoms. k. Articles submitted by the Veteran’s attorney in October 2020 regarding the etiology of psychiatric disabilities. l. The October 2020 private examination report. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Ensure that the directives specified in this remand have been implemented.  If they have not, appropriate corrective action must be undertaken before readjudication.  Stegall v. West, 11 Vet. App. 268 (1998).   3. Then, readjudicate the claim.  If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.