Citation Nr: 21011493 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 09-47 004 DATE: March 2, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded REASONS FOR REMAND The Veteran had active military service in the United States Army from July 1974 to July 1976 and from February 2003 to May 2003. In an April 2019 decision, the Board denied service connection for an acquired psychiatric disorder and entitlement to a TDIU. The Veteran appealed the April 2019 decision to the United States Court of Appeals for Veterans Claims (Court) and in a March 2020 joint motion to the Court, the Veteran and the Secretary of VA requested that the Board decision be vacated, and the issues above be remanded. In a March 2020 Court order, the joint motion was granted, the Board's April 2019 decision was vacated as to the issues of service connection for an acquired psychiatric disorder and entitlement to a TDIU and the issues were remanded. The case has subsequently returned to the Board. 1. The Claims on Appeal are Remanded. The Veteran contends that service connection is warranted for an acquired psychiatric disorder, to include major depressive disorder. After review of the evidence, both lay and medical, the Board finds that a remand is necessary to allow for a fully informed decision. The Veteran advances two theories of entitlement to service connection for an acquired psychiatric disorder. First, the Veteran contends that the current mental health symptoms began during his first period of service. Next, the Veteran argues that in the alternative the current mental health disability was either caused or aggravated by his second period of service. In a September 2014 letter, the Veterans treating psychiatrist indicated that the Veteran received psychiatric treatment through his office since 1994. It does not appear that any attempts have been made to obtain these records. Next, when VA undertakes to provide a medical examination, it must ensure that the examination and opinions therein are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board notes multiple medical examinations of record, however, to date they have all failed to adequately address the question of entitlement to service connection for an acquired psychiatric disorder. As such, a remand is necessary. The Veteran's claim for entitlement to a TDIU is inextricably intertwined with the issue of entitlement to service connection for an acquired psychiatric disorder which is being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to a TDIU cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Contact the Veteran and his representative and ask them to provide sufficient information and necessary authorization in order to obtain copies of any outstanding records of treatment by non-VA health care providers including any inpatient treatment for the claims on appeal. Particular effort should be made to obtain treatment records from Dr. J.C. from 1994 to present and any periods of hospitalization not already associated with the claims file. The letter should invite the Veteran and his representative to submit any pertinent medical evidence in support of his claim. If the Veteran or his representative provides the necessary information and authorizations, obtain any outstanding clinical records and incorporate them into the electronic claims file. 2. Associate any outstanding VA records with the electronic claims file. 3. After completion of the requested development. Schedule the Veteran for a VA psychiatric examination, to assess the current nature and etiology of any current mental health disabilities. The VA examiner should review the evidence associated with the record. All necessary tests and studies should be conducted. The examiner should provide the following opinions: Regarding the Veteran’s period of service from July 1974 to July 1976: Is it as likely as not that any current mental health disability was incurred in, or due to the Veteran's active military service? The examiner must comment on: 1. The Veteran’s June 1976 Report of Medical History. 2. The Veteran’s reports that his current mental health symptoms began during his first period of service, including his December 2020 declaration. Regarding the Veteran’s period of service from February 2003 to May 2003: (a) Is there clear and unmistakable evidence (undebatable) that the Veteran's current mental health disability preexisted this period of service? The Board notes that the service treatment records for this period are mostly unavailable. Furthermore, a mental health disability was not noted on the Veteran's 2003 examination, and as such, the presumption of soundness does attach in this case and can only be overcome by a showing of clear and unmistakable evidence of a preexisting condition. The Board notes that the term "clear and unmistakable" is defined in applicable regulations to mean "obvious or manifest." 38 C.F.R. § 3.304(b). This term has been further defined by the Court as meaning that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). (b) If the examiner concludes that there is clear and unmistakable evidence of that the Veteran's current mental health disability preexisted service, then the examiner should further opine as to whether there is clear and unmistakable evidence demonstrating that the pre-existing mental health disability was not aggravated beyond the natural progression of the condition as a result of active military service. Any such evidence should be identified with specificity. (c) If it is determined that there is no clear and unmistakable evidence that the Veteran's mental health disability pre-existed service, the examiner should presume that the disability was not present at the time of service entrance. The examiner should then opine as to whether it is at least as likely as not that the disability had its onset in service or is otherwise related to the February 2003 to May 2003 period of service? The VA examiner must comment on: 1. The October 1994 Psychiatric Medical Report 2. The March 2007 Buddy Statement from J.M.. 3. The September 2008 statement from the Veteran’s spouse. 4. The Veteran’s December 2020 declaration. A complete rationale for all opinions is required. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.