Citation Nr: 21070612 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 19-21 689 DATE: November 24, 2021 REMANDED Service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran had active service from November 1999 to April 2007. This case comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the Agency of Original Jurisdiction (AOJ) dated in August 2018 that denied service connection for alcohol use disorder with unspecified depressive disorder with anxious distress. The Veteran testified before the undersigned at a July 2021 hearing; a transcript of the hearing is of record. The Board notes that the Veteran's representative was not present at the hearing, but the Veteran agreed to proceed without his representative. In October 2021, the Board requested written argument from the Veteran's representative with regard to this appeal. In response, the representative declined to do so, and instead submitted a memorandum stating that the claims file was returned without action. The Veteran has contended that his current psychiatric disorder includes depression, anxiety, posttraumatic stress disorder (PTSD), autism and/or Asperger's syndrome, and alcoholism. See notices of disagreement dated in November 2018 and January 2019. Accordingly, the Board has broadened this claim as noted on the first page of this remand. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). 1. Service connection for an acquired psychiatric disorder is remanded. The Veteran contends that he incurred a psychiatric disorder in service, to include depression, anxiety, and PTSD, among others. See his March 2018 claim and November 2018 notice of disagreement. Alternatively, he contends that his preexisting psychiatric disorder was aggravated by service. See July 2019 substantive appeal, and July 2021 Board hearing transcript, page 7. Evidence indicates that there may be outstanding relevant VA treatment records. During the July 2021 Board hearing, the Veteran reported that he was treated at a VA Medical Center in approximately June 2021, and has continued to receive VA treatment for the disability on appeal. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's current psychiatric disorders preexisted his military service. The Veteran's October 1999 service entrance examination does not show a notation of a psychiatric disorder, and the evidence is at least in equipoise as to whether a psychiatric disorder manifested during service. See May 2005 service treatment record, VA medical records dated from December 2005 to January 2006 reflecting treatment for pathological gambling, depression, anxiety, and avoidant personality, and April 2007 medical examination showing that the Veteran's medical problems included alcohol dependence (alcoholism), and adjustment disorder with anxiety and depressed mood. Therefore, with respect to a psychiatric disorder, the presumption of soundness attaches, and there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. 38 C.F.R. § 3.304(b). Although a VA examination and medical opinions were obtained with regard to this claim in June and August 2018, the Board finds that they are inadequate as the examiner did not apply the correct legal standard. Remand is required to obtain a supplemental medical opinion. In June and August 2018 VA medical opinions, a VA examiner opined that there is clear and unmistakable evidence that the current alcohol use disorder and unspecified depressive disorder with anxious distress existed prior to service. However, the examiner opined that it is "less likely than not" that the conditions were permanently aggravated beyond their natural progression in service. The examiner did not state whether it is clear and unmistakable that the psychiatric disorder was not aggravated in service. In his November 2018 notice of disagreement, the Veteran contended that he has PTSD related to service. On remand, the AOJ should attempt to corroborate the Veteran's reported stressor(s). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2020 to the present. 2. Attempt to corroborate the Veteran's in-service stressors. If more details are needed, contact the Veteran to request the information. 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any current psychiatric disorder. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must respond to the following questions: (a) Did any current psychiatric disorder clearly and unmistakably (undebatable) preexist the Veteran's service? (b) If the examiner finds that a current psychiatric disorder did clearly and unmistakably preexist service, was it clearly and unmistakably NOT aggravated by service? (c) If the examiner finds that a current psychiatric disorder either did not clearly and unmistakably preexist service or was not clearly and unmistakably not aggravated by service, the examiner must opine whether it is at least as likely as not related to service. Provide a rationale to support the opinions. (Continued on the next page) In providing the requested opinion, consider the Veteran's description of in-service events and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.