Citation Nr: 21067608 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-06 134 DATE: November 4, 2021 REMANDED Entitlement to service connection for major depressive disorder, recurrent, moderate (claimed as dysthymic disorder and depression) is remanded. REASONS FOR REMAND The Veteran had active service in the Air Force from May 1989 to March 1990. This matter comes to the Board of Veterans' Affairs (Board) on appeal from an October 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. Entitlement to service connection for major depressive disorder, recurrent, moderate (claimed as dysthymic disorder and depression) is remanded. The Veteran contends that his major depressive disorder (MDD) is service-connected as he was separated from service due to a mental condition. See September 2021, Appellate Brief. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims clarified how the Board should analyze claims for depression, anxiety, and other acquired psychiatric disabilities. As emphasized in Clemons, a veteran's claim "cannot be limited only to that diagnosis but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. The presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to service and was not aggravated by service. 38 U.S.C. §§ 1111, 1137. A preexisting disease or injury will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that a condition was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In a September 2017 VA examination, the VA psychiatrist diagnosed the Veteran with major depressive disorder, recurrent, moderate (MDD). The VA psychiatrist opined that the Veteran's claimed condition was clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. The VA psychiatrist stated that the Veteran's MDD "could be attributed to many things and it was nearly impossible to determine the impact of his military service, which ended in March of 1990 on the Veteran's MDD." While the VA psychiatrist went into great detail of the Veteran's psychiatric history per the Veteran's treatment records and upon interview with the Veteran. The VA psychiatrist's rationale did not address the Veteran's claimed stressors of being sexually assaulted by a superior officer and depression due to bad news regarding family incident. The September 2017 VA psychiatrist's opinion also failed to address the Veteran's emergency treatment diagnosis for depression. See July 2017 STR. The Board reviewed the VA psychiatrist's September 2017 opinion that the Veteran's health condition was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. The VA psychiatrist stated that the Veteran's major depressive disorder could be attributed to many things and it was nearly impossible to determine to the impact of his military service, which ended in March 1990. Specifically, the government can only rebut the presumption of soundness with clear and unmistakable evidence that the Veteran's disability was both (1) preexisting and (2) not aggravated by service. See Wagner v. Principi, 370 F.3d 1089,1096 (Fed. Cir. 2004). The Board finds that the opinion rendered in the September 2017 VA examination is inadequate and remand is necessary for a new VA supplemental opinion to determine whether there is clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. See also Stegall, 11 Vet. App. at 271. This matter is REMANDED for the following actions: 1. The RO should refer the case for a VA supplemental medical opinion to determine the nature and etiology of all diagnosed psychiatric disorders. An examination of the Veteran is not required but may be so ordered by the VA examiner if he/she determines it necessary to render the below requested opinions. The VA examiner is requested to provide the following opinions for each psychiatric disorder diagnosed and articulate such opinions in the language requested in each prompt: a. Whether there is clear and unmistakable evidence (obvious, manifest, undebatable) that the Veteran's psychiatric disability pre-existed his military service. The term "clear and unmistakable" is an onerous standard. In other words, clear and unmistakable evidence leads to a conclusion that is undebatable. b. If it is determined that the Veteran's psychiatric disability clearly and unmistakably pre-existed his military service, determine whether there is clear and unmistakable evidence (obvious, manifest, undebatable) that any such pre-existing psychiatric disability was NOT aggravated in service. c. If it is found that there is clear and unmistakable evidence that the Veteran's psychiatric disability existed prior to service AND that there is clear and unmistakable evidence that the condition was NOT aggravated by service, the examiner should clearly indicate the clear and unmistakable evidence supporting his/her conclusions. d. If, however, it is determined that there is no clear and unmistakable evidence establishing that the Veteran's major depressive disability pre-existed military service and that the pre-existing condition was NOT aggravated in service, the examiner must take as conclusive fact that the Veteran was sound on entrance into the military. If that is the conclusion reached, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed psychiatric disability was caused by or was incurred in service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Le, Tai D. 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.