Citation Nr: 21013421 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 13-14 532 DATE: March 9, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1972 to January 1973. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. This case was most recently before the Board in January 2020, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. Service Connection – Acquired Psychiatric Disorder The Veteran seeks service connection for an acquired psychiatric disorder. Specifically, he asserts that he experienced an in-service stressor event when he was held at gunpoint in a bar sometime in 1972. As noted above, the claim for entitlement to service connection for an acquired psychiatric disorder was most recently before the Board in January 2020, when it was remanded to the AOJ for further development. Specifically, the January 2020 Board directed the AOJ to afford the Veteran an additional VA examination for his claim. The January 2020 Board decision noted that the Veteran had previously been afforded VA examinations in November 2012 and February 2019 and found that a supplemental medical opinion was necessary to address the etiology of any current acquired psychiatric disorder. In its remand directives, the January 2020 Board directed the examiner to provide opinions as to whether any current acquired psychiatric disorder had its onset during service or is otherwise related to service, to include the Veteran’s reported stressor; and also to state whether the Veteran’s disability existed prior to service and whether it was aggravated by such service. The Veteran was afforded the directed VA examination for his acquired psychiatric disorder in December 2020. At that time, the examiner opined the Veteran’s acquired psychiatric disorder was less likely than not related to active service. The examiner found the condition clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted that the Veteran had been consistently diagnosed with a personality disorder since service; there was no evidence that he was diagnosed prior to service with a mental disorder; and no basis for an aggravation opinion. Additionally, the examiner noted that pre-military behavior was consistent with a personality disorder, however his entrance examination is silent for mental health concerns, and the Veteran is presumed to be sound upon entry. Additionally, the examiner opined that the Veteran’s acquired psychiatric disorder was less likely than not incurred in or caused by a claimed in-service injury, event or illness. In this regard, the examiner noted the Veteran’s record did not support the presence of a trauma related disorder, and there was not sufficient evidence suggesting that his personality disorder had its onset during service or is otherwise related to an in-service injury, event, or disease, to include the Veteran’s reported stressor. In this regard, the examiner noted that his personality disorder is not due to military service, and there is “nothing to counter the opinions of psychologists who have indicated that there is not sufficient evidence that his personality disorder, or any other mental disorders, to include substance use disorders or adjustment disorders, that have been diagnosed since the military, were aggravated by or otherwise related to his reported stressor.” Moreover, the examiner opined that the Veteran’s acquired psychiatric disorder which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. In this regard, the examiner noted the Veteran’s personality disorder was first documented in service, and therefore no baseline prior to service could be determined. However, the examiner also noted that “given what has been documented in the record, he had significant problems prior to service which were not evaluated upon entry,” and that he was “presumed sound upon entry and was diagnosed with a personality disorder within a year of enlisting.” Therefore, aggravation could not be determined. The Board finds the December 2020 VA opinions incomplete to decide the claim. The examiner did not provide adequate supporting rationale for the conclusions reached; the report is self-contradictory; and the opinion provided did not comport with the proper legal standard. At times, the examiner notes the Veteran’s acquired psychiatric disorder existed prior to service, but then states the Veteran was sound upon entry; the examiner also found there was no basis for aggravation, but later states that aggravation cannot be determined, without explanation. The examiner also found the Veteran was first diagnosed during his service, and that there is no evidence to find aggravation by his service, but also states that the Veteran had a prior history of a manifestation of psychiatric symptoms. Moreover, the examiner did not adequately address the Veteran’s reported in-service stressor of being held at gunpoint in a bar in 1972; and the examiner did not opine whether an acquired psychiatric disorder clearly and unmistakably preexisted active service was not clearly and unmistakably aggravated beyond its natural progression by active service, to include the reported incident in 1972. Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. See D’Aries, 22 Vet. App. at 105; see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As such, remand is again required to afford the Veteran an additional VA examination that complies with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, the Veteran should be afforded an appropriate VA examination to determine the etiology of his claimed acquired psychiatric disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for further examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (a) Identify the Veteran’s currently diagnosed acquired psychiatric disorder(s) or has had such a diagnosis at time during the pendency of his claim. If the examiner determines that a diagnosis previously of record is not warranted, he or she should reconcile that with the record. (b) Thereafter, for every diagnosed acquired psychiatric disorder found on examination, is it clear and unmistakable (obvious, manifest, and undebatable) that the acquired psychiatric disorder preexisted active service? (c) Thereafter, for every diagnosed acquired psychiatric disorder found on examination, is it clear and unmistakable (obvious, manifest, and undebatable) that the preexisting acquired psychiatric disorder WAS NOT aggravated during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress? The examiner should be sure to address the Veteran’s criminal history prior to service. (d) Thereafter, for every diagnosed acquired psychiatric disorder found on examination, if the acquired psychiatric disorder DID NOT preexist service, is it at least as likely as not (a probability of 50 percent or greater) had its onset in service or is etiologically related to service? The examiner should be sure to address the Veteran’s reports of being held at gunpoint in 1972 during active service. (e) For any personality disorder, the examiner should also opine as to whether it is at least as likely as not that the Veteran has an additional disability due to a disease or injury superimposed upon a personality disorder as a result of service. In offering such opinions, the examiner should consider the Veteran’s statements. The examiner must provide a complete rationale for all opinions and conclusions reached. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.