Citation Nr: 21005986 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-58 735 DATE: February 3, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served active duty with the United States Marine Corps from May 1976 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Muskogee, Oklahoma. The Veteran testified in a videoconference before the undersigned Veterans Law Judge in September 2019. A copy of the hearing transcript is of record. The matter was previously before the Board in January 2020, where it was remanded for further evidentiary development including affording the Veteran an examination. The matter has returned to the Board for an appellate review. The Board observes that the RO had originally adjudicated the appellant's claim as entitlement to service connection for PTSD. However, the medical evidence of record reveals diagnoses of various psychiatric disorders. Accordingly, the issue has been recharacterized to afford the Veteran the broadest and most sympathetic review. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) is remanded. The Board regrets further delay on this matter but finds that additional development is required. The evidence of record reflects a September 2014 positive PTSD screen test. The Veteran also has diagnoses of mood disorder, persistent depressive disorder and unspecified psychotic disorder during the current appeal period. See CAPRI. Additionally, an October 2019 Mental Health Note stated that the Veteran “carries a provisional diagnosis of schizoaffective disorder yet review of chart reveals he has carried diagnoses in the past of schizophrenia, bipolar disorder, panic disorder, insomnia, depression”. See CAPRI. Pursuant to the Board’s January 2020 remand, the Veteran was afforded a VA Mental Disorders examination in March 2020. The diagnosis was schizoaffective disorder, depressive type. The examiner noted that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Orientation was within normal limits. Appearance and hygiene were appropriate. Behavior was appropriate. He maintained good eye contact during the exam. Affect and mood were appropriate. Communication was within normal limits. Speech was normal. Thought processes were appropriate. The Veteran was able to understand directions and answer direct questions. He reported significant degree of memory impairment since his stroke about four to five years ago. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that the Veteran has had many significant events in his life that are more likely than not the cause of his mood disorder included physical abuse by his father, his personal alcohol abuse that he noted began in 1972 (prior to military service), his marriage and divorce from his first wife, his stepson's motor vehicle accident (MVA), his personal truck accident in 2005, his broken neck in 2007, and his stroke (about 4 to 5 years ago). The examiner continued that statement from the Veteran’s service treatment records do not indicate mood symptoms or treatment for mental health only behavioral and alcohol abuse problems which led to his discharge (under honorable conditions) from the Marines. Regarding secondary service connection, the examiner opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or aggravated by the Veteran’s service-connected hearing loss and tinnitus. The examiner went on to proffer similar rationale as noted above. See March 2020 C&P Examination. The Board finds the March 2020 VA examination inadequate. The medical record reflects a consistent history of depression, mood disorder and other acquired psychiatric disorders. See CAPRI. It appears that the March 2020 examiner wholly relied on the Veteran’s diagnosis of schizoaffective disorder made by Dr. L. in August 2019, in formulating her medical opinion checking that the Veteran did not have more than mental health disorder diagnosed. As noted previously, the Veteran has been diagnosed with various mental health disorders to include mood disorder, bipolar disorder and panic disorder. Furthermore, the examiner’s rationale is partly suggestive that the Veteran’s mental health may have pre-existed service. However, where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to rebut the presumption by clear and unmistakable evidence that (1) the condition preexisted service and (2) the preexisting condition was not aggravated by service. Wagner v. Principi, 370 F3d. at 1345; Horn v. Shinseki, 25 Vet. App. at 234; 38 U.S.C. § 1111. This statutory provision is referred to as the “presumption of soundness.” “Clear and unmistakable evidence” is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). Therefore, the initial issue to consider is whether the Veteran may be presumed sound on entrance. In the instant case, the Veteran's entrance examination was silent for any prior instances of a mental health disorder. As no pre-existing medical condition was noted on the entrance examination, the Veteran is presumed sound on entrance into service. Specifically, a medical opinion is necessary to address whether it is clear and unmistakable (obvious, manifest, and undebatable) that the Veteran had a mental health disability that pre-existed service. If the examiner determines that the Veteran was not sound at the time of his enlistment, the examiner must also address the issue of aggravation of a pre-existing condition. In addition, the examiner should attempt to reconcile the March 2020 examiner's findings with the other medical evidence of record. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for an acquired psychiatric disorder, to include PTSD at any VA facility and by any private treatment provider. 2. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 3. After the preceding development is completed, provide an addendum opinion (schedule examination if necessary) as to whether the Veteran's psychiatric disorder(s) clearly and unmistakably preexisted his service. The complete electronic claims file must be made available to the examiner in conjunction with the examination. (a) If determined that the Veteran had psychiatric disorder(s) that preexisted service, offer an opinion as to whether such psychiatric disorder(s) were clearly and unmistakably NOT aggravated by his service. (b.) If determined that the Veteran did not clearly and unmistakably have psychiatric disorder(s) prior to service, opine on whether it is at least as likely as not (50 percent or greater probability) that Veteran's psychiatric disorder(s) had their onset during, or are etiologically related to, the Veteran's service, to include consideration of the Veteran's contentions that his drinking became a problem when he joined the Military; and that he was sent to alcohol rehab while in the service after his wife and two year old girl left him in Hawaii; and that he developed depression after that; and that he attempted suicide via right eye and was put in Crisis Unit. (c) If determined that the Veteran did not clearly and unmistakably have psychiatric disorder(s) prior to service, opine on whether it is at least as likely as not (a 50 percent or greater probability) that the psychiatric disorder(s), are caused by or aggravated by the Veteran’s service-connected disabilities. The examiner is requested to address, analyze and reconcile the findings March 2020 VA examiner and the various psychiatric diagnoses which appear in the record. In addition, the examiner should acknowledge, address, consider, and discuss all lay evidence in the record pertaining to the relevant disorder, including the Veteran's September 2019 Board hearing testimony, as well as the Veteran's reports to treatment providers, as they appear throughout the record. 4. After completing the above development and any other development deemed necessary, readjudicate the claim. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and allow appropriate time to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, Associate 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.