Citation Nr: 21001407 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 16-35 456 DATE: January 8, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Marine Corps from July 2006 to June 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in November 2018 when the Board, in pertinent part, denied the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder, including major depressive disorder. The Veteran appeals the Board’s November 2018 decision, to the United States Court of Appeals for Veterans Claims (Court). In a November 2019 Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s November 2018 decision concerning the issue of entitlement to service connection for an acquired psychiatric disorder and remanded the claim to the Board. Pursuant to the JMPR, in April 2020, the Board then remanded the current claim to obtain a VA medical opinion. This development is now complete, and this matter is now before the Board for appellate review. Entitlement to service connection for an acquired psychiatric disorder, including major depressive disorder The Veteran contends his current acquired psychiatric disorder is related to his active service. Specifically, he asserts this disability is due to service in Iraq, onset after a friend was killed in Afghanistan, or alternatively, that it developed secondary to chronic pain. See Statement in Support of Claim; Veteran’s Form 9; Nov. 2020 Appellate Brief. The “presumption of soundness” provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). “When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on 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 v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Here, while there is evidence suggesting the Veteran’s psychiatric disability existed prior to the Veteran’s service, the Veteran’s entrance examination could not be located. Absent evidence to the contrary, it is presumed that an entrance examination is provided prior to all periods of active duty service. See Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009). Therefore, the presumption of soundness applies. See id. (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a veteran's entrance examination has been lost or destroyed while in VA custody)). Rebutting the presumption of soundness requires clear and unmistakable evidence that the disability preexisted service and was not aggravated during service. See 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). “Clear and unmistakable evidence” is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). Regarding whether the Veteran’s disability preexisted service, the Veteran underwent a VA examination in August 2020. In addressing the etiology of his current psychiatric disability, examiner determined that this disorder was less likely than not causally related to active service because it was “more likely as not that the Veteran’s current symptoms represent a pre-existing depression.” See Aug. 2020 VA Examination at 8. In so determining, the examiner pointed to service treatment records showing that prior to his service, the Veteran had a suicide attempt resulting in psychiatric hospitalization and treatment with medication. See id.; Mar. 2009 Service Treatment Records at 5. While the examiner failed to apply the correct standard of clear and unmistakable evidence, the Board finds the cited service treatment records probative evidence that the Veteran had a pre-existing psychiatric disability. Therefore, remand is necessary to determine whether the Veteran’s disability clearly and unmistakably existed prior to service. In cases where the claimed disability is shown to be preexisting, it will be presumed to have been aggravated by service where there was an increase in disability during service, unless clear and unmistakable evidence shows that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Horn v. Shinseki, 25 Vet. App. 231, 238 (2012). There are multiple records of the Veteran complaining of psychiatric symptoms and receiving care while on active duty. Notably, the Veteran was hospitalized in the spring of 2009 for suicidal thoughts relating to spousal abuse and infidelity. See Mar. 2009 Service Treatment Records; Feb. 2009 Service Treatment Records at 58-60. Nevertheless, in addressing whether the Veteran’s current psychiatric disability was aggravated by service, the August 2020 VA examiner concluded the Veteran’s pre-existing depression was less likely than not aggravated beyond its natural progression. She reasoned that because the Veteran’s in-service psychiatric symptoms resolved with resolution of his marital problems, his current disability was unrelated to these in-service psychiatric symptoms. See Aug. 2020 VA Examination Addendum. Similarly, in an August 2014 VA examination, the examiner found that the Veteran’s disability was less likely than not related to in-service mental health issues because his in-service adjustment disorder was caused by “psychosocial and environmental problems that are no longer present and do not currently cause clinically significant symptoms of mental disorder.” See Aug. 2014 VA Examination. However, in determining that the Veteran’s current psychiatric disability was not aggravated by service, the August 2020 VA examiner failed to address the Veteran’s contentions that his current disability was related to service in Iraq and impact of the death of a friend. Accordingly, the Board finds the examiner did not adequately explain why, if the Veteran’s disability pre-dated service, it clearly and unmistakably was not aggravated by service. Once VA undertakes the effort to provide an examination or opinion when developing a service connection claim, an adequate examination or opinion must be provided. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds remand is necessary to obtain a VA opinion addressing whether any pre-existing psychiatric disability was clearly and unmistakably not aggravated by service, including aggravation due to service in Iraq and the impact of the death of the Veteran’s friend. The Board further notes the Veteran did not raise a theory of entitlement to service connection for a psychiatric disability secondary to chronic pain until after this matter was returned to the Board for appellate review. Accordingly, on remand, the examiner should also offer an opinion to determine whether the Veteran’s psychiatric disability is proximately due to or aggravated by chronic pain associated with his existing service-connected disabilities. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his current acquired psychiatric disability. The examiner is asked to opine: a. Whether the record shows that the Veteran clearly and unmistakably (undebatable) had a pre-existing psychiatric disability prior to service. b. If the examiner finds that a psychiatric disability did clearly and unmistakably exist prior to service, the examiner must then opine whether this disability was clearly and unmistakably not aggravated by service. In making this determination, the examiner is asked to address the Veteran’s contentions that his current psychiatric disability was caused by service in Iraq and/or the impact of his friend’s death in Afghanistan. 2. If the examiner finds that a psychiatric disability either did not clearly and unmistakably exist prior to service, or was not clearly and unmistakably aggravated by service, the examiner must opine on the following: a. Whether the Veteran’s acquired psychiatric disorder is at least as likely as not (a 50 percent probability or greater) related to an in-service injury, event or disease, to include service in Iraq and/or impact of the death of the Veteran’s friend. b. Whether the Veteran’s acquired psychiatric disorder is at least as likely as not (a 50 percent probability or greater) proximately due to or the result of chronic pain associated with the Veteran’s service-connected disabilities. c. Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s acquired psychiatric disorder is aggravated (increased in severity beyond its natural progress) by chronic pain associated with the Veteran’s service-connected disabilities. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O. Gomez, Law Clerk 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.