Citation Nr: 21009718 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 09-27 044 DATE: February 23, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and dysthymic disorder, is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps on active duty from December 1979 to June 1982. The issue comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issue was previously before the Board in October 2013 and December 2015. The Board remanded for evidentiary development. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2019. A transcript of the hearing has been included with the record. In July 2019, the Board denied the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court granted a Joint Motion for Remand (JMR). The Court found that the Board failed to present an adequate statement of reasons or bases that affirmatively presented clear and unmistakable evidence that the Veteran’s acquired psychiatric condition was both preexisting and not aggravated by service. Pursuant to the JMR, the Court vacated and remanded the matter to the Board. Although the Board regrets further delay, another remand is necessary to provide the Veteran with every possible consideration in accordance with the Court’s Order. Further development is necessary prior to appellate review to provide the Veteran with adequate VA medical opinions. Entitlement to service connection for an acquired psychiatric disorder, is remanded. The Veteran contends his acquired psychiatric condition is related to his active duty service. The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. The presumption of soundness attaches only where there has been an induction medical examination, and where a disability for which service connection is sought was not detected at the time of such examination. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). The burden of rebutting this presumption of soundness falls to VA. VA must prove by clear and unmistakable evidence that a disease or injury preexisted active service and the preexisting disease was not aggravated by service. Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2012). Clear and unmistakable evidence is evidence that cannot be misinterpreted of misunderstood. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The Veteran’s September 1979 enlistment examination shows that no psychiatric disorder was identified. Therefore, the presumption of soundness attaches. See 38 U.S.C. § 1111. The burden is on VA to rebut the presumption by clear and unmistakable evidence that the Veteran’s psychiatric disorder was both preexisting and not aggravated by service. In April 2017, the Veteran underwent a VA examination to address the Veteran’s psychiatric condition. The VA examiner provided the medical opinion that there is clear and unmistakable evidence that the Veteran’s current acquired psychiatric disorder existed prior to active service. The VA examiner presented evidence of the Veteran’s in-service symptoms of worrying and memory problems. The VA examiner noted the Veteran’s May 1982 service treatment record, which reported the Veteran stated he thought he needed a mental workup. The VA examiner opined that there was no evidence of record that the Veteran’s preexisting acquired psychiatric disorder worsened during service or that any increase was due to the natural progression of the disease. VA’s duty to assist includes providing an examination and obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Here, remand is required to provide the medical opinion that the records of the Veteran’s in-service symptoms, found in the Veteran’s service treatment records and as identified in the April 2017 VA examination, are clear and unmistakable evidence that the Veteran’s preexisting psychiatric condition was not aggravated in service. Moreover, VA must address the Veteran’s March 2019 lay statement testimony from his Board hearing, that his mental health condition worsened in service due to an in-service assault while stationed in Japan. Additionally, the Veteran noted his psychiatric symptoms worsened due to oral surgery during boot camp. As a lay person, the Veteran is competent to provide opinions on certain subjective medical issues and of observable symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Thus, VA must address the Veteran’s lay statements that the in-service assault and medical procedure aggravated his preexisting psychiatric disorder. As noted above, VA regulations pertaining to the rebuttal of the presumption of soundness require the highly stringent standard of clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. Without a medical opinion that clearly addresses the Veteran’s relevant in-service symptoms, the Board is left to rely on its own lay opinion to address the etiology of the Veteran’s condition, which it is forbidden from doing. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the Board finds that a medical opinion is needed. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: Schedule an examination with an appropriately qualified VA clinician to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The claims file should be reviewed in conjunction with the examination. A copy of this remand should be made available to the examiner. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine as to the following: (a) Is it clear and unmistakable (obvious or manifest) that the Veteran entered active military service with pre-existing psychiatric disorder, to include depression and dysthymic disorder? (b) If YES, is it clear and unmistakable (obvious or manifest) that the Veteran’s psychiatric disorder WAS NOT aggravated by the Veteran’s active military service? In other words, please determine whether it is clear and unmistakable that there was NO increase in disability during service. If the examiner finds that NO clear and mistakable (obvious or manifest) evidence shows that either a) the Veteran entered active service with a pre-existing psychiatric disorder, OR b) the Veteran’s psychiatric condition WAS NOT aggravated, then for the purposes of this examination the Veteran must be presumed to be sound on enrollment into active service. (c) If the answer to either (a) or (b) is NO, the examiner must provide a medical opinion to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s current psychiatric disorder had its onset in, or is otherwise related to his active military service. The term “as likely as not” is used to express that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. In comparison, “clear and unmistakable evidence” is undebatable evidence that cannot be misinterpreted or misunderstood. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, 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.