Citation Nr: 21021062 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 05-32 071 DATE: April 9, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include a psychosis, is remanded. REASONS FOR REMAND The Veteran served in the United States Army from January 1973 to March 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in October 2008, where it was denied. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court), which vacated the October 2008 Board decision and ordered remand pursuant to a March 2010 Joint Motion to Remand (JMR). The Board remanded the matter again in July 2010 and August 2012, before issuing a decision in May 2013. The Veteran appealed to the Court, which vacated the May 2013 Board decision and ordered remand pursuant to a November 2013 JMR. The Board remanded the matter again in September 2014. The Board denied the matter for the third time in September 2019. The Veteran appealed to the Court, which vacated the September 2019 Board decision and ordered remand pursuant to an October 2020 JMR. It now returns to the Board for adjudication. The October 2020 JMR directed the Board to provide an adequate reasons and bases statement concerning its findings on the presumption of soundness, chronicity, and the weight afforded to medical evidence. After reviewing the record, the Board unfortunately concludes that the matter must be remanded again for additional development. The Board sincerely regrets the additional delay. Remand is necessary to correct duty-to-assist errors and to ensure that the Veteran is given every opportunity to demonstrate entitlement to his claim. The Veteran seeks service connection for an acquired psychiatric disorder. VA examinations and VA and private treatment records show that the Veteran has been diagnosed with bipolar disorder, schizophrenia, and adjustment disorder with anxiety during the pendency of this appeal. The Board finds that the evidence of record is sufficient to entitle Veteran is entitled to a VA examination for each diagnosed disorder, and that an adequate VA examination has not been obtained for any of these disorders as detailed below. I. Bipolar Disorder The Veteran has been continually diagnosed with bipolar disorder during VA and private treatment. The Veteran underwent a VA examination in September 2010, where the examiner confirmed a diagnosis of bipolar disorder. The examiner concluded that it was less likely than not that the Veteran’s bipolar disorder was caused by or related to service because the Veteran’s past history indicated that it was “likely linked to family and genetic factors which were then duly exacerbated by the vet’s service.” A May 2012 VA addendum opinion was obtained, where the examiner opined that any aggravation by service was “minimal,” and that the Veteran’s progress “suggests” that the natural course of his illness is occurring “for the most part.” ”Likely” or “for the most part,” however, are not the correct legal standards for evaluating whether a Veteran’s disability pre-existed service or was not aggravated by service. Under the presumption of soundness, a veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1132, 1137; 38 C.F.R. § 3.304(b). Here, the Veteran’s entrance records do not note an acquired psychiatric disorder at entrance and, therefore, the presumption of soundness would normally attach. The presumption of soundness may be rebutted if it is shown “by clear and unmistakable evidence both that a condition existed prior to service and that it was not aggravated by service.” Patrick v. Shinseki, 668 F.3d 1325, 1328 (Fed. Cir. 2011). To show that a disability was not aggravated by service, it must be shown by clear and unmistakable evidence that “(1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition.” Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. at 396. Unfortunately, it appears that prior to now, an appropriate clinician was not asked to make an opinion about whether the Veteran’s bipolar disorder pre-existed service, or was not aggravated by service, using the correct legal standard of clear and unmistakable evidence. The Veteran is entitled to an adequate opinion that uses the correct legal standard in evaluating his claim. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The Board will remand to obtain this opinion. II. Schizophrenia The Veteran has been intermittently diagnosed with schizophrenia during the pendency of this appeal. Although consistently diagnosed with schizophrenia in the 1980’s, the Veteran’s VA treatment records from 2003 to the present reflect a history of schizophrenia, but not current findings of schizophrenia. He was found to have schizophrenia during the September 2010 and May 2012 medical examinations mentioned above. Most recently, his VA treatment records reflect active diagnoses of bipolar disorder, adjustment disorder with anxiety, attention-deficit/hyperactivity disorder, and an adjustment reaction with antisocial behavior. Apr. 25, 2019, Primary Care Provider Follow-Up Patient Note. There are also notations of an anxiety disorder, not otherwise specified (NOS). Aug. 25, 2018, VA Physician Emergency Dep’t Note. A veteran may be entitled to service connection even if a disability resolves during the pendency of the appeal, a veteran must nevertheless have a present disability at some point during a claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). The Board does not have sufficient medical evidence to make a determination whether the Veteran had schizophrenia when filing the September 2003 claim on appeal or has had schizophrenia since that time, even if it later resolved or became quiescent, and will remand to obtain this opinion. If the Veteran had is diagnosed with a present disability of schizophrenia, further medical opinions are required. The September 2010 and May 2012 VA examinations also diagnosed the Veteran with schizophrenia. Although the September 2010 VA examination also concluded that the Veteran’s schizophrenia pre-dated service, but was exacerbated by service, neither examination used the correct “clear and unmistakable evidence” standard when discussing pre-existence and aggravation. For the same reasons as above, the Board will remand to obtain an adequate opinion on pre-existence and aggravation that uses the correct legal standard. Regulations define schizophrenia as a psychosis that is eligible for service connection on a presumptive basis under 38 C.F.R. § 3.307. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Further, a veteran may show that a pre-existing disability was aggravated by service under certain circumstances on a presumptive basis. Splane v. West, 216 F.3d 1058, 1065-71 (2000). The Veteran has continually stated that he has a psychiatric disorder, and has experienced symptoms of a psychiatric disorder, since service, and VA and private treatment records show repeated treatment for psychiatric disorders for several decades. The evidence of record raises the possibility that the Veteran’s schizophrenia can be shown to meet the chronic presumptive criteria. Although the Veteran has made lay statements to this effect, in general for complex medical issues medical evidence is often required. See Savage v. Gober, 10 Vet. App. 488, 497 (1997). This is particularly true in this case where the Veteran has been diagnosed with a variety of mental disorders, only one of which is a “chronic disease” eligible for service connection under 38 C.F.R. § 3.303(b). The Board will therefore remand to obtain an addendum opinion on this issue. III. Additional Mental Disorder The Veteran’s VA treatment records show a separate diagnosis of adjustment disorder with anxious mood in a May 2011 psychiatry visit, and on a continual basis since then, as well as notations of adjustment disorder in 1984 and 2004. As mentioned, the Veteran also bears diagnoses of attention-deficit/hyperactivity disorder, NOS, and an anxiety disorder, NOS. Because the Veteran’s original contentions for service connection were for a “nervous disorder,” and the Veteran has continually discussed problems reintegrating into society after service, the Board finds that the Veteran is entitled to a medical opinion as to whether additional mental disorders were caused or aggravated by service. 38 C.F.R. § 3.159(c). The Board will remand for an opinion on this issue. Because the Board finds that remand of the entire matter is necessary, adjudication of the remaining terms of the JMR concerning adequate reasons and bases is premature and will be discussed after adequate medical opinions have been obtained. To ensure a complete record when this case is returned to the Board, updated VA treatment records from May 21, 2019, to the present should be associated with the claims file. The matter is REMANDED for the following actions: 1. Any VA treatment records pertaining to the Veteran’s mental health dated after May 21, 2019, should be associated with the claims file. If the Veteran has sought care through a provider, such as a Vet Center, who requires an authorized release form, the Veteran should be asked to complete such a form or independently acquire and submit those records. 2. Schedule the Veteran for a VA mental health examination. The examiner is directed to review the claims file and this decision. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and 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? The examiner is reminded that the Veteran is presumed credible to report symptoms and that the Veteran’s lay contentions may not be found non-credible solely due to the lack of contemporaneous medical records. The examiner is asked to provide a response to the following: At any point during the period on appeal, defined as June 2003 to the present, please identify each psychiatric disorder, to include consideration of the possibility of bipolar disorder, schizophrenia, or adjustment disorder, which the Veteran has met, even if the disorder has subsequently resolved. For each identified acquired psychiatric disorder so identified, please answer the following: a. Did the acquired psychiatric disability clearly and unmistakably (undebatable) preexist the Veteran’s service? The examiner is reminded that clearly and unmistakably is defined as “obvious or manifest.” Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” b. For each acquired psychiatric disorder that the examiner finds clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? The examiner is reminded that aggravation is defined as defined as clear and unmistakable evidence that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. The examiner shall specifically address the February 1975 in-service report of mental problems, the May 2010 medical opinion by Dr. A. H., and the September 2010 VA examination’s opinion that the Veteran had acquired psychiatric disorders that were exacerbated by service. c. If the examiner finds that any acquired psychiatric disability either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to service. The examiner shall specifically address the February 1975 in-service report of mental problems and the May 2010 medical opinion by Dr. A. H. d. If the examiner finds that the Veteran has or has had a psychosis in the period from June 2003 to the present (defined as brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, or substance/medication-induced psychotic disorder), the examiner must opine whether it is at least as likely as not that the disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner is reminded that with respect to continuity of the same symptomatology, the examiner shall consider “symptoms,” and not merely “treatment.” The examiner is reminded that the Veteran does not have to have been diagnosed or noted with any particular disability during service itself for the purposes of showing a chronic disability in service or notation in service. The examiner shall specifically address the February 1975 in-service report of mental problems, the May 2010 medical opinion by Dr. A. H., and the September 2010 VA examination’s opinion that the Veteran had acquired psychiatric disorders that were exacerbated by service. The examiner is reminded that alcohol and substance abuse, although not service connectable, may be considered as a symptom of a service-connected disability. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael D. Wagner, 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.