Citation Nr: A21019178 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 200522-163702 DATE: December 2, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), major depressive disorder, and generalized anxiety disorder with panic attacks, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1986 to December 1987. In August 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding is associated with the file. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Of note, the Veteran initially claimed service connection for a mental health condition and was afforded a VA examination for PTSD. However, to best encompass the diagnoses of record, the Board has recharacterized the issue as captioned above. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a Veteran's description of the claim, reported symptoms, and the other information of record). Entitlement to service connection for bilateral hearing loss is remanded. The Veteran testified that he has hearing loss as a result of his military service. The Veteran was afforded a VA Hearing Loss and Tinnitus examination in February 2019. The examiner provided a positive nexus for tinnitus and determined that the Veteran did not have hearing loss for VA purposes. However, the Veteran testified, under oath, that there were problems with his headphones, the sound booth, and the testing equipment. In addition, the Board notes that the Veteran was put on a hearing profile while he was in-service after being exposed to excessive military noise at the range. Under the modernized appeals process, the Board must remand appeals to the Agency of Original Jurisdiction (AOJ) to correct any pre-decisional duty to assist errors. For the reasons outlined above, the Board finds that the VA Hearing Loss examination is insufficient for adjudication purposes and a remand for a sufficient examination and medical nexus opinion is necessary. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and generalized anxiety disorder with panic attacks is remanded. The Veteran asserts that his current acquired psychiatric disability was an in-service aggravation of a pre-existing psychiatric condition. The Veteran was afforded a VA Initial PTSD examination in June 2019 with an addendum opinion provided in the same month. The examiner provided a negative nexus opinion and stated that the Veteran's PTSD was due to childhood trauma and not his time in-service. However, she did not acknowledge or address the other diagnoses of record. Moreover, she was factually incorrect when she stated, "there was no in-service trauma that contributed to this diagnosis," even though the Veteran was hospitalized for a suicide attempt in service and diagnosed with situational stress reaction with depressive mood. See Hearing Transcript, see also Service Treatment Records. Additionally, the Board notes that the Veteran is presumed to be sound as at his entrance physical examination, no psychiatric conditions were noted. 38 U.S.C. § 1111. At the same time, the evidence of record appears to show that the Veteran had a pre-existing psychiatric condition due to the childhood trauma he experienced. The application of 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. Under those circumstances, the presumption of soundness shields the veteran from a finding that the disease or injury preexisted (and therefore was not incurred in) service by requiring VA to prove by clear and unmistakable evidence that a disease or injury manifesting in service both preexisted service and was not aggravated by service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012). Here, the Board requires a medical opinion as to whether the Veteran's pre-existing psychiatric condition was aggravated in-service. The Board also requires a nexus opinion regarding the in-service diagnosis of "depressive mood" and his current diagnosis of major depressive disorder, severe. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As stated above, under the modernized appeals process, the Board must remand appeals to the Agency of Original Jurisdiction (AOJ) to correct any pre-decisional duty to assist errors. For the reasons outlined above, the Board finds that the VA Initial PTSD examination is insufficient for adjudication purposes and a remand for a sufficient examination and medical nexus opinion is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his bilateral hearing loss. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's hearing loss at least as likely as not related to service, including his loss of hearing after firing approximately 120 rounds at the range as documented in the June 1987 STR entry? 2. Schedule the Veteran for a VA Mental Health Conditions examination for his acquired psychiatric disability. The examiner must review the claims file, to include this remand and the hearing transcript. The examiner is asked to provide a response to the following: Did the Veteran's acquired psychiatric disability clearly and unmistakably preexist the Veteran's service? If the examiner finds the Veteran's acquired psychiatric disability did clearly and unmistakably preexist service, then the examiner must determine whether it was clearly and unmistakably not aggravated by service? The examiner must address the in-service hospitalization as a result of a suicide attempt and diagnosis of "depressive mood." If the examiner finds that the Veteran's acquired psychiatric disability either did not clearly and unmistakably preexist service or was not clearly and unmistakably not aggravated by service, the examiner must opine whether the Veteran's current acquired psychiatric disability is at least as likely as not related to service, including his in-service psychiatric hospitalization after a suicide attempt and diagnosis of depressive mood. Only if the examiner finds that the Veteran's acquired psychiatric disability did pre-exist service and was not clearly and unmistakable not aggravated in service, then the examiner must opine whether the Veteran's pre-existing acquired psychiatric disability increased in severity during service? If so, was the increase in severity clearly and unmistakably due to the natural progress of the disease? Provide a rationale to support the opinions. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.