Citation Nr: 21065318 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 12-12 198 DATE: October 25, 2021 ORDER Service connection for an acquired psychiatric disability is granted. REMANDED Entitlement to an evaluation of total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's current acquired psychiatric disorder, as variously diagnosed and to include major depressive disorder, originated during service and has continued since that time. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June to December 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the United States Court of Appeals for Veterans Claims issued an order granting a Joint Motion for Remand (JMR) in which the parties agreed to vacate the October 2020 Board decision which had denied service connection for an acquired psychiatric disorder and TDIU. The parties agreed that the Board's decision inappropriately relied upon an inadequate VA psychiatric examination. The claim for TDIU was intertwined with the psychiatric disorder claim. Both matters were returned to the Board for further development and to set forth adequate reasons and bases for its findings. Entitlement to service connection for an acquired psychiatric disability is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In July 2021 the Veteran submitted to VA a copy of a psychiatric evaluation conducted by a private psychologist in June 2020. The psychologist confirmed a prior diagnosis of severe major depressive disorder with psychotic features. The examiner's report thoroughly documents her interview with the Veteran and a review of his complete record including discussion of previous VA examinations. She summarized that the Veteran had enlisted in 1971, using his brother's birth certificate to hide the fact that he was only 15 years old at the time (a fact well-documented in the Veteran's military personnel record). The examiner wrote that the Veteran was completely unable to cope emotionally with service at that age. The Veteran described experiencing severe panic attacks within weeks of his enlistment, which led to anger and aggression. At one point, the Veteran had hidden beneath his bed while his unit determined who would be assigned to Korea, so he could avoid being sent there. The examiner pointed to a service treatment record from October 1971 showing the Veteran had been evaluated by military psychiatrists and treated for a "hysterical conversion reaction." Just under two months later, while he was being discharged for a void enlistment due to being a minor, the Veteran's discharge examination showed normal mental results. The examiner wrote that such episodic patterns of symptoms were typical of many psychiatric disorders including major depressive disorder, because acute symptoms often last for several weeks followed by a period of remission or partial remission. Therefore, the indication of a normal mental status on the date of his discharge examination was not indicative of actual emotional health. The examiner further documented and described the Veteran's subsequent mental health treatment history, which dates to June 1981, although most of the Veteran's treatment for depression symptoms is shown from November 2005 onward. The examiner wrote an opinion that it was more likely than not that the Veteran's current psychiatric disabilities began during his time in service. See July 2021 Correspondence. The Board affords high probative weight to this examination and opinion, based on its thorough consideration of the Veteran's complete mental health treatment history, service records, and the Veteran's lay statements. As discussed in the JMR, a VA examination in October 2019 is inadequate, as it relied upon an inaccurate factual premise that the Veteran's record did not show a history of any mental disorder between 1971 and 2011. As noted by the private psychologist above, the record shows intermittent treatment from 1981 onward. The Board is mindful of a VA examination and opinion in February 2015, which diagnosed the Veteran with unspecified depressive disorder but found it was not related to service because the Veteran's in-service psychiatric treatment was acute, transient, and not shown at the time of separation. See February 2015 Compensation and Pension (C&P) Examination. However, the Board finds that the private examiner's opinion is more probative, as it addressed the same period of service and explained that acute psychiatric symptoms can be followed by a short period of remission. Moreover, the fact pattern laid out in the private examination is consistent with other evidence of record, such as the Veteran's medical record and military record. Weighing the probative evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's major depressive disorder originated during service and has continued since that time. Accordingly, all of the Shedden criteria are met, and the claim for service connection is granted. REASONS FOR REMAND Entitlement to TDIU is remanded. The TDIU matter on appeal is inextricably intertwined with initial rating to be assigned for his now service-connected acquired psychiatric disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As such, entitlement to TDIU is remanded for further adjudication pending the assignment of an initial rating by the Agency of Original Jurisdiction (AOJ). This matter is REMANDED for the following action: After assigning an initial evaluation for the Veteran's service-connected acquired psychiatric disorder, readjudicate the entitlement to TDIU. Take any action deemed necessary to assess the TDIU matter, to include, if needed, further VA examination(s). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.