Citation Nr: 21024479 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 20-05 739 DATE: April 22, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, bipolar condition and schizo-affective disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 2007 to November 2007. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for acquired psychiatric disorder, to include depression, anxiety, bipolar condition and schizo-affective disorder is remanded. The Veteran seeks service connection for depression and anxiety; for a bipolar condition; and for bipolar/schizo-effective disorder. The Veteran argues that his psychiatric issues which pre-existed service were aggravated during service.   A preliminary review of the evidence of record shows that the Veteran attempted to enlist in the Army Reserves and the Coast Guard, but he was ultimately rejected from each service due to previous diagnosis of psychosis. See May 2020 Appellate Brief (VSO IHP); 2/11/2008 STR – Medical, at 39. The Veteran thereafter enlisted in the Marine Corps. At his enlistment examination, he disclosed he had been previously hospitalized and evaluated for a mental condition after a fight at school, and although he was prescribed medication, he did not take it. 2/11/2008 STR – Medical, at 24. The Veteran disclosed his previous rejections for enlistment in the other services. The examining physician made a handwritten note to obtain medical records of past psychiatric treatment. Id. at 20. However, no such records are shown in the VA claims file, and it is unclear from the record if they were obtained by the physician at all. Later, military doctors indicated that the physician had given the Veteran a waiver for his bipolar condition. Yet the record does not show that the physician ever noted that the Veteran had a diagnosis of any specific mental health condition, or that the physician issued a waiver for any known condition. See STR – Medical. After two months of basic training, the Veteran was evaluated for symptoms of paranoia and disorganized thinking. A memorandum before his discharge indicates the Veteran had been hospitalized for those symptoms, but no medical records of a hospitalization are shown in the claims file. Id. at 10. He was discharged for erroneous enlistment based on bipolar disorder, which military doctors stated had existed prior to service. Id. at 7. Veterans are presumed to have been in sound condition upon entry into service, except as to conditions noted on their entrance examinations. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. If a pre-existing disorder is noted upon entry to service, a veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In such case, the burden falls on the veteran to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Pursuant to 38 U.S.C. § 1153, a pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. In such claims the veteran (the evidence of record) must simply show that there was an increase in disability during service to trigger the presumption of aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progression of the pre-existing condition. Wagner, 370 F.3d at 1096; 38 U.S.C. § 1153. The Government must make its showing by clear and unmistakable evidence. See Cotant v. Principi, 17 Vet. App. 116, 130-22 (2003); see also 38 C.F.R. § 3.306(b). Here, it is unclear which, if any, of the Veteran’s conditions were noted upon his entry into the Marine Corps or waived by the examining physician. Although military doctors later indicated a waiver had been issued for the Veteran’s bipolar disorder upon his entry into service, no such waiver is currently shown in the record. Both the military personnel records and service medical records in the claim file appear incomplete, and remand is necessary to attempt to obtain the Veteran’s complete service record and service medical records. Additionally, the record reflects that the Veteran was hospitalized in service and these records are typically stored separately from any service treatment records so a request for these inpatient records is to be on remand. Furthermore, the Veteran has not undergone a VA examination, and no medical opinion has been rendered about the etiology of any of his psychiatric conditions. As a part of the duty to assist claimants, VA must provide a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on the claim. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); 38 U.S.C. § 5103A(d)(1). Due to the unclear nature of the Veteran’s psychiatric disorder and history, the Board finds and examination would be useful to assist with the adjudication of this appeal.   This matter is REMANDED for the following actions: 1. Obtain and associate with the claim file all military personnel records and service treatment records for the Veteran’s attempts to enlist in the Army Reserves in 2003 and the Coast Guard in 2005, and for his enlistment in the Marine Corps from September 2007 to November 2007, including all records from Winn Army Community Hospital at Fort Stewart, Georgia, during the Veteran’s Marine training there from September 2007 to November 2007. Additionally, request from any appropriate repository in-patient hospitalization records from November 2007. See 2/11/2008 STR-Medical, at 10. Document all efforts to obtain the above records in the claims file. If unsuccessful, notify the Veteran and his representative per 38 C.F.R. § 3.159(e). 2. After completion of step (1), schedule the Veteran for an examination of his psychiatric conditions. The examiner is to review the Veteran’s claim file. Please prepare a complete list of all present psychiatric disorders. For each psychiatric disorder identified, the examiner is to answer each of the following questions: (a.) Is it at least as likely as not (50 percent probability or greater) that the psychiatric condition had its onset during the Veteran’s period of active service, or is otherwise the result of a disease or injury during service? Did the identified psychiatric disorder clearly and unmistakably (i.e., undebatably) pre-exist the Veteran’s active service starting in September 2007? (b.) For any condition(s) identified that undebatably pre-existed the Veteran’s active service, was that disorder noted and directly addressed by the examining physician at the time of the Veteran’s entry into the Marine Corps in 2007? i. If the condition pre-existed service and WAS noted and directly addressed by the examining physician upon entry to service, is it at least as likely as not (50 percent or greater probability) that the condition increased in severity during active service? If there was worsening, is there clear and unmistakable evidence that any increase in disability was due to the natural progression of the pre-existing condition during the Veteran’s active service? ii. If the condition pre-existed service but was NOT noted by the examining physician upon entry to service, is there clear and unmistakable evidence that the condition did NOT increase in severity beyond its natural progression during the Veteran’s active service? A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.