Citation Nr: 21070247 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 10-20 548 DATE: November 23, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1973 to October 1974. Entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded. In July 2021, the Board remanded the Veteran's claim for additional development, including obtaining a VA opinion as to the etiology of the Veteran's psychiatric disorder that adequately considered the Veteran's lay statements. Although a VA opinion was obtained in September 2021 as requested, the opinion provided did not adequately address the Veteran's lay statements or provide sufficient rationale, as discussed below. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders). In its July 2021 Remand, the Board noted that the Veteran has provided lay statements alleging that his acquired psychiatric disorder had its onset during service, and was possibly caused by dental work received during service; not receiving a promotion due to racial discrimination; a disturbing sexual experience with a sex worker during service; or being on red alert to go to war in Vietnam during service. The Veteran further noted that he attempted suicide while training to be a squad leader during service. While the September 2021 VA examiner acknowledged the Veteran's statements, the examiner's summary dismissal of the statements as inconsistent is insufficient rationale to support an opinion. The examiner did not address any of the statements specifically and failed to explain why the statements were inconsistent. Additionally, the rationale provided by the examiner for why the Veteran's psychiatric disorder was not caused by or incurred during service was the finding that the Veteran was not diagnosed with a psychiatric disorder during service and the service treatment records do not document signs or symptoms of schizophrenia. However, a diagnosis of a psychiatric disorder during service is not required to establish entitlement to service connection. Further, the examiner did not address the Veteran's lay statements of in-service symptoms, including his statement that he attempted suicide during service. A medical opinion based solely on the absence of documentation in the service treatment records or that fails to take into account lay statements is inadequate. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner's opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Last, the examiner's conclusion that the Veteran's substance abuse disorder pre-existed his military service is unsupported by sufficient explanation and rationale. The Veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Veteran's service entrance examination report does not indicate a psychiatric or substance abuse disorder; therefore, the presumption of soundness on entry to service attaches. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). In order to rebut the presumption of sound condition, the VA must show by clear and unmistakable evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Lay statements alone are insufficient to rebut the presumption of soundness. See, e.g., Paulson v. Brown, 7 Vet. App. 466, 470 (1995); see also Crowe v. Brown, 7 Vet. App. 238, 246 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition). Typically, medical evidence of a pre-existing condition is sufficient to rebut the presumption of soundness. However, when that medical evidence is based solely upon lay reports of the existence of a disability, it is not sufficient to rebut the presumption of soundness. See Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners). The basis of the September 2021 VA examiner's opinion that the Veteran's substance abuse disorder pre-existed military service is unclear. The examiner noted that there was a history of illicit substance abuse in childhood prior to enlisting in service, but the examiner does not state where that finding came from. The Board notes that the Veteran has provided various statements of drug use prior to service, but the claims file does not contain medical documentation of such substance abuse prior to service which is not based solely upon the Veteran's lay statements. Accordingly, clarification of the basis of the examiner's conclusion that the Veteran's substance abuse disorder existed prior to service is needed. The Board notes that, to the extent that the Veteran may be claiming that a substance abuse disorder began during service, the payment of compensation for a disability that is a result of a claimant's own alcohol or drug use is prohibited by law. 38 U.S.C. § 105(a); 38 C.F.R. §§ 3.1(m); 3.301(d). However, a Veteran may receive compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his or her service-connected disability or use of an alcohol or drug abuse disability as evidence of the increased severity of a service-connected disability. Allen v. Principi, 237 F.3d 1368, 1381 (2001). Thus, the examiner must consider whether the Veteran's in-service substance abuse was a symptom attributable to his later diagnosed psychiatric disorder. The matters are REMANDED for the following action: Obtain a new VA opinion by an appropriate VA psychiatrist or psychologist to determine the etiology of the Veteran's acquired psychiatric disorders. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. Based upon a complete review of the evidence of record, the VA examiner must state whether: (a.) It is at least as likely as not (i.e., a 50 percent probability or more) that any of the Veteran's psychiatric disorders currently diagnosed or diagnosed during the pendency of the claim were caused or incurred as a result of the Veteran's active duty service, to include whether it had its onset during active duty service? (b.) It is clear and unmistakable (undebatable) that the currently diagnosed substance abuse disorder pre-existed the Veteran's active duty service? The examiner is advised that the Veteran's lay statements alone, including those in the service treatment records and documented in the post-service medical records, are insufficient to rebut the presumption of soundness. (c.) If not, the examiner should state whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's substance abuse disorder was caused by or incurred as a result of his active duty service, to include whether it is a symptom of any acquired psychiatric disorder, or whether it was caused or aggravated as a result of any acquired psychiatric disorder. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a substance abuse disorder was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale for all opinions must be provided. The Veteran is competent to report symptoms capable of lay observation both during and after active duty service. In providing the above requested opinions, the examiner must also specifically address the Veteran's lay statements that he began experiencing psychiatric symptoms during service, including that he attempted suicide while training to be a squad leader during service. (Continued on the next page) The examiner must also discuss the Veteran's lay statements that his psychiatric disorder is related to in-service dental work, not receiving a promotion due to racial discrimination, a disturbing sexual experience with a sex worker during service, and/or being on red alert to go to war in Vietnam during service. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.