Citation Nr: 21064655 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-45 667 DATE: October 21, 2021 REMANDED Entitlement to an acquired psychiatric disorder to include anxiety, bipolar disorder, major depression is remanded. REASONS FOR REMAND The record shows that the Veteran had active duty service from September 2003 to November 2003. However, the Veteran's discharge from service was noted as "Uncharacterized, Entry Level Separation." The Veteran had additional service from September 2006 to April 2007. The Board notes that the Veteran's DD Form 214 shows that he had an honorable discharge and was released from "IADT" at separation. The reason for separation was completion of "required active service. The appellant has veteran status in this case, as service connection has separately been established for tinnitus based on the period of service from September 2006 to April 2007, as noted in the May 2016 rating decision. 38 U.S.C. § 101 (2) and (24). This appeal is before the Board on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA). In May 2019, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for additional development. The Veteran has been diagnosed with multiple psychiatric conditions. Therefore, the claims are recharacterized as entitlement to service connection for an acquired psychiatric disorder as shown on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (When a Veteran makes a claim, they are seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). 1. Entitlement to an acquired psychiatric disorder is remanded. The Veteran contends that he has a psychiatric disorder from his duties during service. He claims that became extremely depressed and suicidal from stress at that time. While the Board notes there is a positive nexus opinion regarding an acquired psychiatric disorder in the record; that opinion is insufficient as it appears that the April 2017 VA examiner did not base her opinions solely on the Veteran's period of valid service from September 2006 to April 2007. As noted above, while the Veteran had additional service from September 2003 to November 2003, this service has been found to be dishonorable for VA purposes, and VA compensation benefits may not be awarded based on the Veteran's period of dishonorable service. The Appellant's personnel records indicate that his period of valid service from September 2006 to April 2007 was classified as Initial Active Duty Training (IADT). Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of active duty for training and inactive duty for training unless "veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Because the Veteran has already achieved "Veteran status" for a single disability incurred or aggravated during his period of active duty for training from September 2006 to April 2007, the presumptions of soundness and aggravation attach to that period of active duty for training service. See Hill v. McDonald, 28 Vet. App. 243, 252-53 (2016). Where "veteran status" has been recognized for a period of ACDUTRA by establishing service connection for one disability, a claimant may take advantage of the presumption of aggravation for other preexisting disabilities claimed to have been aggravated during the same period of active duty for training. See Hill v. McDonald, 28 Vet. App. 243 (2016). However, the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected." See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). When no pre-existing injury or disease is noted upon entry into service, the Veteran is presumed to have been sound upon entry. See 38 C.F.R. § 3.304(b). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's injury or disease was both pre-existing and not aggravated by service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the presumption of sound condition is not rebutted, "the [V]eteran's claim is one for service connection." Wagner, 370 F.3d at 1096 The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). See generally Hanson v. Derwinski, 1 Vet. App. 512, 514 (1991), for an explanation of the military medical profile system.) In the physical profile section of the July 2006 Report of Medical Examination the Veteran was rated "3P " under the "S" category meaning he had a medical or physical defect which requires certain restrictions in assignment. However, physical examination indicated that the psychiatric evaluation was normal. While the physical profile section noted that the Veteran had a history of major depression, the July 2006 Psychiatry consultation reflects that the Veteran faked depression for separation. No diagnosis was noted at that time and the impression given was fit for duty. A subsequent statement indicated that the Veteran completed anonymous alcohol course in 2004 and there was no profile change. Notwithstanding, the Veteran was granted a medical waiver for entry into service. The Veteran also denied depression or excessive worry in the associated Report of Medical History. Thus, it appears no acquired psychiatric conditions were noted at the Veteran's entrance to service, he is presumed to be in sound condition when examined, accepted, and enrolled for service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Board notes that the April 2017 VA examiner conflates the Veteran's inactive and active service, so it is unclear if any symptoms of the currently diagnosed acquired psychiatric disorder occurred during a period of valid active service. Further as the presumption of soundness attaches, the standard for determining whether a disability preexisted service is "clear and unmistakable" and not "at least as likely as not." The April 2017 opinion reflects use of the incorrect standard on the question of whether the Veteran's condition existed prior to his entrance into valid service from September 2006 to April 2007. As there is not sufficient evidence of record to adjudicate the claim, remand is warranted. The matters are REMANDED for the following action: Return the Veteran's claims file to the examiner who conducted the April 2017 VA psychiatric opinion so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The clinician must provide an opinion as to the following: Determine whether there is clear and unmistakable evidence that an acquired psychiatric disorder preexisted valid service from September 2006 to April 2007. If so, determine whether there is clear and unmistakable evidence that it did not undergo an increase in the underlying pathology during that period service from September 2006 to April 2007, i.e., was not aggravated during such period of service. If there was an increase in the severity of the Veteran's disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. The clinician is advised that the evidentiary standard for whether a condition existed prior to service is "clear and unmistakable," which is a formidable evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." If the Veteran's acquired psychiatric disorder is found not to have preexisted his period of valid service from September 2006 to April 2007, determine whether it is at least as likely as not that the Veteran's acquired psychiatric disorder began in or is related to his period of valid service from September 2006 to April 2007. The clinician must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the clinician must state this and provide a rationale for such conclusion. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Williams, 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.