Citation Nr: 21007372 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 19-36 730 DATE: February 9, 2021 REMANDED Entitlement to service connection for mood disorder with cognitive disorder (previously claimed as posttraumatic stress disorder (PTSD)), to include based on military sexual trauma (MST), is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1962 to June 1966. In January 2021, in support of this claim, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. The Veteran’s claim for service connection for mood disorder with cognitive disorder is predicated on an allegation of MST that he says occurred while he was on watch in the engine room. See January 2021 Virtual Board Hearing Transcript. The Veteran was afforded a VA examination in May 2017 to determine the etiology of his claimed disability. However, the Board finds that prior evaluation inadequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); 38 C.F.R. § 3.159(c)(4). Notably, the examiner did not address or comment on the Veteran’s assertions of MST or what impact, if any, the MST has on his mood disorder with cognitive disorder.   Furthermore, the VA examination report raises the issue of whether the Veteran’s mood disorder with cognitive disorder pre-existed his service. The May 2017 VA examiner concluded that, to a reasonable degree of psychological certainty, the Veteran’s diagnosed psychiatric disorder first began during childhood and worsened due to his military experiences, including discrimination. When addressing the issue of entitlement to service connection for a pre-existing disability, if a condition is not “noted” when entering service, it is presumed the Veteran was in sound health when entering service. In this circumstance, to rebut the presumption of soundness, there must be clear and unmistakable evidence of both a pre-existing condition and a lack of in-service aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). See also 38 U.S.C. § 1111; VAOPGCPREC 3-2003 (July 16, 2003). This distinction is important because clear and unmistakable evidence” is an “onerous” evidentiary standard, requiring that the pre-existence of a condition and the no-aggravation result be “undebatable.” Cotant v. Principi, 17, Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). Here, the Veteran did not endorse any mental health related symptoms or diagnoses during his military entrance examination; therefore, it must be presumed that he was in sound mental health when entering service. See June 1961 Report of Medical History (Veteran denied ever experiencing frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, nervous trouble of any sort, or attempted suicide). Although the May 2017 VA examiner found a pre-existing condition and no in-service worsening, the examiner failed to use the “clear and unmistakable evidence” standard in coming to these conclusions. Accordingly, this claim is REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his claim, including any private treatment records following proper VA procedures (38 C.F.R. § 3.159(c)). Appropriately notify him and his representative if unable to obtain records identified (38 C.F.R. § 3.159(e)). 2. After receiving all additional treatment or other relevant records, obtain a supplemental (addendum) opinion from an appropriate clinician concerning the etiology of the Veteran’s mood disorder with cognitive disorder. The claims file, including a complete copy of this remand, must be made available to the clinician, and the supplemental opinion should include discussion of the Veteran’s documented medical history and assertions. The examiner is specifically asked to answer the following questions: (a.) Did the Veteran’s mood disorder with cognitive disorder clearly and unmistakably (obviously or manifestly) exist prior to his entrance into service? (b.) If it did, was it also clearly and unmistakably (obviously or manifestly) NOT aggravated during or by his service (meaning not worsened at all or, if worsened, not beyond the condition’s natural progression)? (c.) If the VA examiner concludes there is no clear and unmistakable evidence that the Veteran’s mood disorder with cognitive disorder existed prior to his service and was not aggravated by his service, is it at least as likely as not (a 50 percent or greater probability) that his disability instead was incurred during his service or is otherwise attributable to it, including caused by his asserted MST or any other incident during his service?   In responding, the examiner should discuss whether there are any “markers” in service to suggest the occurrence of MST. The examiner should also discuss the Veteran’s lay statements. The examiner must provide rationale for all opinions provided, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. The mere absence of evidence of treatment for mood disorder with cognitive disorder in the Veteran’s service treatment records (STRs) cannot, alone, be sufficient reason for providing an unfavorable opinion. However, the examiner may consider that as one of the factors in deciding whether there is the required attribution of the Veteran’s mental disorder to his service, provided there is also explanation of why some indication of relevant complaints or diagnosis in service, such as in the STRs, is a reasonable expectation. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so.   If the examiner cannot provide the requested opinions without resorting to mere speculation, he/she should expressly indicate this, provide supporting rationale as to why a more definitive opinion cannot be provided, and indicate what additional evidence, if any, would allow for a more definitive opinion. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.