Citation Nr: 21071754 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-32 426 DATE: December 1, 2021 REMANDED The claim for service connection for posttraumatic stress disorder (PTSD) is remanded. The claim for service connection for an acquired psychiatric disability other than PTSD, to include major depressive disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 2009 to October 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for PTSD. 2. Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include major depressive disorder. The Board regrets the delay in this case, but finds that a remand is necessary to obtain an adequate medical opinion addressing the nature and etiology of the Veteran's claimed acquired psychiatric disorders. The Veteran contends that he incurred PTSD and a major depressive disorder due to traumatic events that occurred during his period of active service, to include fearing for his life during his deployment to Iraq and an episode of sexual assault. The record contains the opinion of a September 2016 VA examiner weighing against service connection and the opinion of an April 2020 private examiner weighing in favor of service connection. However, the Board finds that both these medical opinions are not adequate as they did not utilize the correct legal standard and were not based on the accurate facts of the case. Specifically, neither examiner adequately addressed the Veteran's pre-service history of mental health and substance abuse problems, nor did they address the presumption of soundness. The claims file contains numerous references to the Veteran's mental health issues prior to service (including multiple psychiatric hospitalizations), but he was found psychiatrically normal on the February 2009 enlistment examination. As such, the presumption of soundness applies and a medical opinion is necessary to determine whether a psychiatric condition clearly and unmistakably existed prior to service, and if so, whether it was aggravated therein. See 38 U.S.C. § 1111. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 to allow VA to obtain treatment records from Peachford Hospital in Atlanta, Georgia and Ridgeview Institute in Smyrna, Georgia, to include hospitalizations in 2007. Make two requests for the authorized records from Peachford Hospital and Ridgeview Institute, unless it is clear after the first request that a second request would be futile. 2. Then, schedule the Veteran for an examination to determine the nature and etiology of any currently present acquired psychiatric disorders, to include PTSD and a major depressive disorder. After reviewing the claims file, including the history of the claimed disability below, the examiner should issue medical opinions addressing the following: a) Whether any diagnosed acquired psychiatric disorder clearly and unmistakably (obvious and manifest) existed prior to service; And if so, whether any such disability clearly and unmistakably (obvious and manifest) did NOT undergo an increase in severity during service beyond the natural progress of the disease. The examiner must utilize the clear and unmistakable standard when answering BOTH questions above. b) If the examiner provides a negative opinion to either question above, the examiner should then determine whether any diagnosed acquired psychiatric disorder is at least as likely as not related to the Veteran's reported stressors, including fear of hostile military or terrorist activity in Iraq and an in-service sexual assault. The Veteran contends that PTSD and/or a major depressive disorder were incurred due to various traumas during his active duty service, including fear of hostile military activity during his deployment to Iraq and an in-service sexual assault that occurred in 2009. Service records include a normal physical examination at enlistment in February 2009 and document the Veteran's deployment to Iraq in July 2010. He reports that he feared for his life while in Iraq following the injury of a sergeant in his unit by a roadside bomb, the death of two soldiers following an argument, and the threat of hostile military activity associated with his duties checking vehicles for insurgents. Just prior to his deployment, the Veteran's urine tested positive for marijuana. He was sent to Iraq, was counseled regarding his use of a controlled substance, and was brought up on Article 15 charges on July 31, 2010 (the same day his deployment to Iraq ended) for wrongfully using marijuana. The Veteran was not enrolled in a drug treatment program during service, despite indications in his personnel records that such treatment was standard following a positive drug test. In any event, a behavioral health evaluation performed in connection with the drug charge was normal, the Veteran denied having any psychiatric symptoms at an August 2010 examination, and proceedings began to separate the Veteran from military service. He was formally discharged in October 2010. Post-service records show that the Veteran experienced multiple episodes of homelessness and was hospitalized several times for substance abuse and severe mental health problems, to include instances of active suicidal ideation. VA and private treatment records document the Veteran's conflicting reports regarding his psychiatric history: on some occasions, the Veteran reported that his problems began during active service and worsened after discharge, but the Veteran has also stated on multiple occasions that he has experienced psychiatric issues since adolescence. During a November 2011 psychiatric evaluation at a private facility, the Veteran stated that he was hospitalized several times before service for mental health problems and detoxification. In July 2015, the Veteran stated that he was diagnosed with bipolar disorder at the age of 18 and the September 2016 VA examiner noted a "significant history of psychiatric issues prior to the military." The April 2020 private examiner, while providing a medical opinion in support of the Veteran's claim for service connection, did not discuss the Veteran's history of pre-service mental health problems beyond noting some previous use of drugs and alcohol. A new VA examination and medical opinion are therefore required to fully address the evidence of a pre-existing psychiatric disorder and the presumption of soundness. K. Conner Veterans Law Judge Board of Veterans' Appeals M. Riley, Attorney for the Board Department of Veterans Affairs 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.