Citation Nr: 21067141 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-31 800 DATE: November 3, 2021 REMANDED The claim of entitlement to service connection for a psychiatric disorder is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Navy from March 1985 to March 1989. In August 2018, June 2020, and March 2021, this case was remanded for additional development. Entitlement to service connection for a psychiatric disorder is remanded. The Board finds that a remand is required to obtain another VA examination. The medical evidence does not adequately address the etiology of the Veteran's psychiatric disorder. January 1989 service treatment records showed that the Veteran was involved in an altercation with his LCPO and was hit in the face. The Veteran was hysterical, and it took 20 minutes to calm him down. It was determined that the Veteran had problems with self-expression and verbalization, which manifested itself as frustration and aggression. It was noted that the Veteran was involved in similar episodes and that the recent episode was possibly provoked. The assessment was aggression/hostile behavior traits possibly the result of poor communication skills. He was referred to mental health and given an assessment of rule out personality disorder. March 1991 VA treatment records showed that the Veteran was hospitalized due to complaints of depression, aggression towards inanimate objects, and an inability to talk to women. He reported problems with finding a girlfriend and using his money on prostitutes and massage parlors for sexual desires. This resulted in him feeling empty, which led to him becoming enraged and destroying objects such as lamps. He described a four-to-five-year history of periods of depression. He was brought to the hospital because the week prior he had become angry with a female cousin and destroyed her car out of rage. The psychologist determined that his diagnosis was consistent with intermittent explosive disorder and no diagnosis of psychosis was confirmed. His report of hearing voices was more consistent with his own thoughts. North Carolina Department of Corrections treatment records documented the Veterans mental health treatment during his incarceration. In July 1997, the Veteran endorsed psychiatric symptoms related to the July 1996 murder of his fiancé. The fiancé pulled out a razor during an argument and the Veteran choked her to death. The treatment records noted that the Veteran participated in an anger management/coping skills group during his incarceration. While the Veteran submitted private medical opinions in support of his claim, the medical opinions of record do not sufficiently address whether the Veteran's psychiatric disorder pre-existed service. In this regard, the record contains multiple references to pre-military mental health problems. For example, a November 2004 North Carolina Department of Corrections treatment record noted that the Veteran reported problems with anger since childhood, with increased anxiety during service. During a February 2014 clinical assessment, he reported depression throughout his entire life and mood swings since he was young. A March 2014 private treatment record noted that the Veteran's first mental health treatment occurred when he was 12 years old. He stated that he was "having fits and stuff" and would get "tensed up and throw things." During a May 2015 psychiatric evaluation with R.S., M.D., the Veteran stated that he had anger and depression his entire life and that he was first treated for behavioral problems when he was 12 years old. During a September 2019 VA neuropsychology consult, the Veteran reported that his psychiatric symptoms started in 1984 when he learned that he would be unable to use his football scholarship to attend college. An August 2015 Mental Disorders DBQ completed by H.H., Ph.D., showed that the Veteran denied a personal mental health history prior to his active duty service. Dr. H. concluded that the Veteran's psychiatric disorder began in military service and continued since then. In March 2020, Dr. H. indicated that there was no indication of a pre-existing mental health issue and that he entered military service with no issues. The conclusion was that the Veteran's schizoaffective disorder began during his military service. In April 2021, the Veteran submitted a medical opinion from K.G., M.D. Dr. G. provided diagnoses of schizoaffective disorder and unspecified anxiety disorder. It was noted that the Veteran did not have any mental health treatment prior to military service. Dr. G. concluded that the Veteran's psychiatric disorder started during service. It was noted that he received inpatient psychiatric treatment in 1992, with mental health treatment intermittently since then. Dr. G. noted that his 1992 hospitalization was due to a mixture of aggression, anger outbursts, psychotic features, and depression. He stated that he had high anxiety, suicidal thoughts, and command hallucinations at the time of the hospitalization. He was imprisoned for murder from 1996 to 2012 and for assault in 2015. When discussing the July 1996 murder, the Veteran recalled an ongoing struggle with confusion and anger. The Board finds that another VA examination and opinion is required to determine whether there is clear and unmistakable evidence that the Veteran's psychiatric disorder pre-existed service and was not aggravated by service. As discussed above, the evidence indicates that the Veteran underwent mental health treatment prior to service due to problems with anger, mood swings, "having fits and stuff," getting "tensed up and throwing things," and depression. In January 1989, he was involved in an altercation with his LCPO. He was found to be hysterical and was described as having problems with frustration and aggression. In March 1991, he received inpatient psychiatric treatment due to depression and aggression. It was noted that he had recently destroyed his cousin's car because he was angry. He also displayed aggression towards inanimate objects. In July 1996, he murdered his fiancé during an argument. He later recalled problems with anger and confusion in relation to the July 1996 murder. The Veteran participated in anger management classes during his incarceration. The Board notes 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 the 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. A remand is required to determine whether there is clear and unmistakable evidence that a) The Veteran's psychiatric disorder existed prior to service and b) the psychiatric disorder was not aggravated by service. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Thereafter, the RO or the AMC should afford the Veteran a VA examination by an examiner, other than the examiner who conducted the Veteran's November 2018 examination, with sufficient expertise, to determine the nature and etiology of the Veteran's psychiatric disorder (the examiner should consider and discuss any and all psychiatric disorders diagnosed during the appeal period). All pertinent evidence of record must be made available to and reviewed by the examiner. All necessary tests and studies should be accomplished. The examiner must identify all psychiatric disorders present during the period of the claim. Following an examination of the Veteran, and a thorough review of the record, the appropriate physician is requested to provide an opinion as to the following with respect to the following: (a) With respect to each psychiatric disorder, the examiner should state an opinion as to whether it clearly and unmistakably (undebatable based upon evidence that cannot be misinterpreted and misunderstood) existed prior to the Veteran's entrance onto active duty. (b) If the disorder is found to have clearly and unmistakably preexisted service, the examiner should state an opinion as to whether there is clear and unmistakable (undebatable based upon evidence that cannot be misinterpreted and misunderstood) evidence that the preexisting disorder did not permanently increase in severity as a result of military service. (c) If the disorder is found not to have clearly and unmistakably existed prior to the Veteran's entrance onto active duty, then the examiner should state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the disorder is etiologically related to the Veteran's military service. The supporting rationale for all opinions expressed must be provided. If the physician is unable to provide any required opinion, he or she should explain why the required opinion cannot be provided. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. 3. Then, the AOJ should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. McKinley, 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.