Citation Nr: 21016007 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 17-28 087 DATE: March 19, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability to include depression is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1972 until April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a March 2019 decision, the Board denied the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed the denial to the United States Court of Appeals for Veterans’ Claims (Court). In a July 2020 Memorandum Decision, the Court vacated and remanded the Board’s March 2019 denial of the claim of entitlement to service connection for a psychiatric disorder. 1. Entitlement to service connection for an acquired psychiatric disability to include depression is remanded. The Veteran asserts entitlement to service connection for an acquired psychiatric disability to include depression, which he contends was incurred during his active duty service. Specifically, the Veteran has argued that he became depressed during service when his wife told him that she wanted a divorce. See the Veteran’s statements dated April 2016 and October 2016. He reported that he attempted suicide during service, and began using drugs and alcohol thereafter. Id. The Veteran argues that his substance abuse and psychiatric problems have continued since that time. Id.; see also the VA treatment records dated October 2016. In the July 2020 Memorandum Decision, the Court noted that the Board determined that a VA medical examination or opinion was not warranted when rendering its March 2019 denial of the Veteran’s acquired psychiatric disability claim. However, the Court stated that the record in this case contained lay evidence that, if credible, may indicate an association between the Veteran’s service and his diagnosed major depressive disorder sufficient to satisfy the third prong of McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Court noted that this evidence consisted of the Veteran’s statements that he was depressed in service after his wife told him that she wanted a divorce, he attempted suicide, and subsequently resorted to substance abuse. The Court drew the Board’s attention to the Veteran’s contentions that his substance abuse and psychiatric symptoms have continued to the present day. The Court noted that as such statements “would satisfy McLendon’s ‘low threshold’ for indicating an association between [the Veteran’s] claimed psychiatric disorder and service if the Board found them to be credible . . . the Board was required to address that potentially favorable lay evidence to determine whether it triggered VA’s duty to provide a medical examination.” See the Memorandum Decision dated July 2020. Accordingly, in consideration of the Memorandum Decision, the Board finds that this matter should be remanded in order to afford the Veteran a VA examination with medical opinion to address outstanding questions of continuity of symptomatology and nexus as to the pending appeal. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed acquired psychiatric disability to include depression. All indicated tests and studies should be conducted. The contents of the electronic claims file must be made available to the examiner for review in connection with the examination. (a). With respect to any diagnosed psychiatric disability to include depression, the examiner should render an opinion, with supporting rationale, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in service or is otherwise medically related to in-service injury or disease. (b). In providing the opinion and rationale, the examiner should consider the relevant evidence of record, particularly (1) the Veteran’s service treatment records; (2) the Veteran’s contentions that his psychological symptoms began in service after his spouse asked for a divorce; (3) the Veteran’s contentions that his psychological symptoms manifested as substance abuse; and (4) the Veteran’s contention that his psychological symptoms have persisted from service. (c). If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? In this regard, the examiner should note that the absence of evidence of treatment for a claimed disability in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.