Citation Nr: 21022319 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-31 455 DATE: April 15, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, claimed as depression and alcohol abuse, is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from July 2002 to November 2002, January 2003 to January 2005, and February 2005 to April 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The claim was remanded by the Board in June 2018. At that time, the claims for service connection for depression and an alcohol use disorder were recharacterized more broadly to include any acquired psychiatric disorder. After further development, the claims have since returned to the Board for appellate review. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, claimed as depression and alcohol abuse, is remanded. Following remand, the Veteran was afforded another VA examination in connection with his claim in May 2019. Upon evaluation, the examiner diagnosed the Veteran with attention deficit hyperactivity disorder (ADHD) and a mild neurocognitive disorder secondary to his non-service connected TBI. She opined that it is less likely than not an acquired psychiatric disorder was incurred in or caused by any claimed in-service injury, event, or illness. Rather, she stated that the Veteran endorses symptoms that are consistent with ADHD, which is a pre-existing condition that was treated prior to service. She further stated that ADHD is considered neurodevelopmental and not incurred or caused by stress. However, predisposing individuals can experience mood and anxiety symptoms, and substance abuse. The examiner also stated that it would be speculative to presume why he was diagnosed with major depressive disorder due to inconsistent data and the Veteran’s inability to accurately recall events due to his TBI. The Board finds this opinion to be inadequate for various reasons. VA treatment records indicate the Veteran has a major depressive disorder, an unspecified mood disorder, an adjustment mood disorder, an alcohol use abuse disorder, and PTSD. See September 2009, September 2010, August 2019, and February 2020 VA treatment records. While the examiner did not diagnose the Veteran with any other psychiatric disorders on the day of the evaluation, she did not note his previously diagnosed disorders. Further, she did not discuss whether the Veteran had been previously misdiagnosed based on the evidence that is available in the record. Additionally, the VA examiner did not address the Veteran’s statement that his psychiatric disorder began when he became depressed because of harassment in service, and that the depression continued thereafter. See September 2009 statement. The Veteran also stated that he sought help but was denied; therefore, he began drinking to cope. Id. The Board notes that, according to a September 2011 memorandum, all of the Veteran’s service treatment records are not available. However, the Veteran’s enlistment examination is available and did not note a psychiatric disorder prior to service. Therefore, the presumption of soundness applies, and clear and unmistakable evidence would be needed to rebut that presumption. Therefore, the Board finds that an additional medical opinion is needed to address the correct legal standard. For these reasons the service connection claim for an acquired psychiatric disorder is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. The Board finds that the service connection claim for TBI is inextricably intertwined with the service connection claim for an acquired psychiatric disorder. The record shows that the Veteran sustained a TBI when he was involved in a motorcycle accident while under the influence. The Veteran stated in a September 2009 lay statement that he became depressed because he was being harassed. Further, when he sought treatment for depression, he was denied and told to “get outta here”. Thus, he began to drink to cope with his depression and the situation. Therefore, the TBI claim cannot be adjudicated until further development of the intertwined claim is conducted. The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. Additionally, the examiner should be provided a copy of this remand. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders, to include PTSD, a major depressive disorder, an unspecified mood disorder, an adjustment mood disorder, an alcohol use disorder, and ADHD. If any previously diagnosed psychiatric disorders are not found on examination, the examiner should address whether there were misdiagnosed or have resolved. The examiner should consider the service treatment records that show the Veteran was involved in a motorcycle accident while under the influence in 2008. He or she should consider and address the Veteran’s January 2009 statement in which he indicated that he became depressed in service when was being harassed and that when he tried to get help, he was denied. Therefore, he began to drink to cope with his depression and the situation. For each disorder identified other than PTSD, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran’s military service. The May 2019 VA examiner diagnosed the Veteran with ADHD. Therefore, the examiner should opine as to whether the Veteran currently has ADHD that clearly and unmistakably preexisted his military service. (The term “clear and unmistakable” means that the evidence is undebatable.) If so, he or she should state whether there was an increase in the severity of the preexisting disorder during this period of service and whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. If the examiner determines that the disorder did not clearly and unmistakably preexist the Veteran’s service, he or she should provide an opinion as to whether it is at least as likely as not that a ADHD manifested in service or is otherwise is causally or etiologically related to his military service, to include any injury or symptomatology therein. Regarding PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events, as well as any stressors related to fear of hostile military or terrorist activity, may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M. Walker 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.