Citation Nr: 21025844 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 12-11 862 DATE: April 29, 2021 REMANDED Service connection for an acquired psychiatric disorder, to include major depression, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1982 to July 1983. This matter originally came before the Board of Veterans’ Appeals (Board) from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified at a July 2013 Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. A February 2019 Board decision denied the Veteran’s claim. That decision was appealed to the United States Court of Appeals for Veteran Claims (CAVC), where a Joint Motion for Remand (JMR) was granted in May 2020. This matter has previously been remanded by the Board for further development, most recently in November 2020. This matter is again before the Board. Service connection for an acquired psychiatric disorder, to include major depression, is remanded. The Veteran believes that service connection for an acquired psychiatric disorder is warranted. See April 2021 Appellate Brief. The parties to the JMR previously agreed that a remand was needed because a 2015 medical opinion was inadequate for multiple reasons. Specifically, the medical opinion looked for an in-service diagnosis of a mental disorder when such was not required; failed to provide a well-reasoned rationale for the opinion that an in-service psychologist examination report was not evidence of clinical depression; and observed that other symptoms/behaviors/features noted in the psychologist examination report would likely be characterized as personality traits or personality styles, but failed to specify or explain which symptoms noted in the examination report were deemed character traits as opposed to early manifestations of an acquired psychiatric disorder. The Board was to remand the matter for a new medical opinion that complied with the Board’s 2014 remand instructions. See May 2020 CAVC Decision. The Board subsequently remanded the matter for an addendum opinion. See November 2020 BVA Decision. The addendum opinion took place in February 2021. See February 2021 C&P Exam. The addendum opinion found that the Veteran’s mental health condition was not related to service because the entrance and separation examinations were silent for symptoms or treatment and because of a psychologist examination performed just one month prior to the Veteran’s separation from service. The examiner stated that the specific test used for the psychologist examination was a valid and reliable test that had been used for decades. The test could tell if the Veteran was being honest in his responses and would be a valid measure of his mental health symptoms and functioning. The test would have indicated the presence of depressive symptoms if the Veteran was experiencing any. The test showed that the Veteran was being honest in his responses and the Veteran denied any depressive symptoms during the test; therefore, he did not have any symptoms of depression. The Board finds the addendum opinion inadequate. Similar to the 2015 medical opinion, the addendum opinion failed to state a well-reasoned rationale as to why the psychologist examination did not provide evidence of clinical depression and did not specify or explain why the symptoms noted in the psychologist examination were not early manifestations of an acquired psychiatric disorder. Specifically, the psychologist examination showed symptoms such as restlessness, irritability, impulsiveness, anger outbursts, etc. Because the addendum opinion has some of the same flaws as the 2015 medical opinion, a remand is needed for a new VA examination. Additionally, a new VA examination is needed to determine whether the Veteran’s service-connected bilateral hearing loss and/or tinnitus caused or aggravated the Veteran’s acquired psychiatric disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Specifically, the Veteran’s hearing loss seems to affect his social relationships and his tinnitus is constant and bothersome. See February 2012 VA Examination; February 2012 Correspondence. The matter is REMANDED for the following action: 1. Update VA and private treatment records. VA treatment records appear current up to February 2021. 2. Schedule one or more appropriate VA examinations for the Veteran’s acquired psychiatric disorders. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following: (A) Identify all acquired psychiatric disorders existing at any point during the pendency of the appeal (i.e. since December 2010), even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is related to service, including but not limited to, if it had its onset during service? (C) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was caused by any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities)? (D) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was aggravated beyond its natural progression by any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities)? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (E) Is it at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities) caused or aggravated the Veteran’s obesity/being overweight including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (F) If yes, is it at least as likely as not (a 50 percent or greater probability) that the obesity/being overweight caused or aggravated any or all of the Veteran’s acquired psychiatric disorders including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. If yes, which ones? (G) Is it at least as likely as not (a 50 percent or greater probability) that any psychoses manifested to a compensable degree within one year following the Veteran’s separation from service? (H) Is it at least as likely as not (a 50 percent or greater probability) that psychoses symptomatology was noted during service/within one year from the Veteran’s separation from service, with continuity of symptomatology since? The examiner must discuss what association, if any, the Veteran’s alcohol abuse had in relation to the Veteran’s reported symptoms, both during and after service. The examiner must provide a well-reasoned rationale as to whether the in-service psychologist examination showed evidence of clinical depression. The examiner must provide a well-reasoned rationale as to whether the symptoms noted in the in-service psychologist examination were early manifestations of an acquired psychiatric disorder. In addition to the other relevant evidence of record, the examiner is asked to consider and address as appropriate the following information with a caution that this list is not a substitute for a review of the record: (1) A list of the Veteran’s service-connected disabilities. See November 2020 Rating Decision – Codesheet. (2) The Veteran’s report of continuity of symptomatology since service. The acquired psychiatric disorder either had its onset during service or is otherwise related to service. See April 2021 Appellate Brief. (3) Medical records from 2012 showing treatment for depression and anxiety. The Veteran had anxiety and mood disabilities. Medical records from 2013 showed that alcohol was contributing to his increased depression and anxiety symptoms; the Veteran’s report that when something went wrong, it made him anxious; and an assessment of major depressive disorder, generalized anxiety disorder versus anxiety from alcohol use, alcohol use disorder. The Veteran reported that his depression symptoms began when his friend died prior to service. He felt guilty for her death. He no longer cared about anything and increased his drinking. He went to college, continued to drink, did not study, and felt that drinking calmed him down. He became depressed and suicidal, but with significant family support, overcame the suicidal ideations. The depression continued until he sought help around the mid-1990s and was started on medication. The Veteran reported depression during service. It was his first real time away from home and he was drinking heavily. His military discharge psychiatry notes said that his mood was up and down, but he was not diagnosed with anything. After service, he would yell at his brother during disagreements. During his first marriage, his spouse found a depression questionnaire and he was a match for depression. A medical professional felt that the Veteran’s drinking might contribute to anxiety, depression, and mood swings. Medical records from 2014 showed diagnoses of a mood disorder and depression. Medical records from 2015 and 2019 showed a body mass index of 38.1, the Veteran’s report of being diagnosed with depression around 25 years prior and receiving outpatient treatment and certain medications throughout that time, and a long history of depression. See November 2020 CAPRI. (4) The Veteran’s report that even though he did not know he had depression before service, it got worse during service. He was away from home for the first real time and was under a lot of pressure to move up the ranks. The Veteran felt that the context of the psychiatric testing during service needed to be considered. The testing done during service was meant to decide if the Veteran should have been decertified from his duties and took place after both the base alcohol rehabilitation committee and the chief of mental health services had already determined that he was a problem drinker, which was disqualifying. The Veteran drank during service to cope with depression and this was evidence of underlying depression. Depression during service caused increased drinking. The in-service testing showed irritability, impulsivity, acting wildly, angry outbursts, and low tolerance for frustration, which are symptoms indicative of psychiatric disabilities under the DSM-5. The Veteran has major depressive disorder and exhibited in-service psychiatric symptoms such as irritability, impulsivity, and anger outbursts. Shortly after service, he did a depression screening with his spouse and then reached out to a doctor who then sent him to a psychiatrist. A depression examination was conducted and showed that the Veteran had major depression. After suffering with depression for many years, he filed a service connection claim. Further information is provided. See May 2020 CAVC Decision. (5) A medical record from May 2015 showing diagnoses of major depressive disorder and alcohol use disorder. Alcohol use causes or worsens depression. The Veteran reported that he was misdiagnosed during service and that the testing during service showed evidence of depression. See May 2015 C&P Exam. (6) The Veteran’s report that he thought the depression started before service when his close friend died. A few months after his friend died, he went to college, did not study, and did not do anything, so he quit and never went back. He thought that depression caused his alcohol drinking to increase. He did not know why he was not tested for depression during service. He was not depressed when he entered service and had never seen a psychiatrist or psychologist before service. He thought the problem started going into service. Service was the first time that he was away from home without any family close by. It was his first time alone, on his own, with no close contact, and he was young. He thought that being away from home caused the depression to get worse and led to the drinking problem. At the time, he was with people he did not know, and they did not know him. After arriving at the base, the chain of command put him under a lot of pressure to achieve a higher rank. He did not know what he needed to do to be successful and had no one to help him. He did not do well on the tests, which put him under a lot of personal stress. Near the end of service, he noticed that he could not keep his mind on stuff and had trouble comprehending stuff. This should have been an indication that he had depression. He had some treatment for his mental health condition in the late 1980s after he took a depression test in the newspaper. An examination found that he had major depression. Before that, he was always extremely short tempered and small stuff upset him. Further information is provided. See July 2013 Hearing Transcript. (7) The Veteran’s report that he drank during service to self-medicate his mental health condition. The Veteran has continued to have trouble with mental health since he left service. He has had financial and employment problems due to his mental health condition. The mental health condition started during service and has continued since. The mental health condition was not caused by financial and employment problems. See May 2012 Form 9. (8) Medical records from 2012 showing mood issues, a history of alcohol abuse, obesity, and active problems of alcohol abuse and depressive disorder NOS. See March 2012 CAPRI. (9) A medical record from February 2012 showing that the Veteran’s service-connected bilateral hearing loss resulted in difficulty hearing on the telephone, hearing the TV, hearing in groups, and hearing in restaurants. See February 2012 VA Examination. (10) The Veteran’s report that he was self-medicating with alcohol during service because of his mental health issues, which were caused by the stress of being on active military duty and his duties as a security specialist. His current problems worsened his mental health condition but did not cause it. See February 2012 NOD. (11) The Veteran’s report that his service-connected tinnitus started during service and has been bothersome and constant. See February 2012 Correspondence. (12) A medical record from February 2011 showing 20 plus years of treatment with an antidepressant. The Veteran had a long history of depression. There were diagnoses of major depression and alcohol abuse. Further information is provided. See February 2011 VA Examination. (13) Service records showing no noted mental health problems upon entrance into service. During service, the Veteran was diagnosed with a drinking problem. A mental health evaluation found that the Veteran had problems with high psychic and physical energy, restlessness, dissatisfaction, boredom, irritability, adaptivity, impulse control, anger outbursts, and had a low tolerance for frustration. Drinking was related to those issues. The Veteran seemed to use alcohol to cope with his feelings. Further information is provided. See January 2011 STR – Medical. (14) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. The rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical finding. Address the Veteran’s documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community’s knowledge or due to the limits of the examiner’s medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran 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. 3. Readjudicate the issue on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dougan, 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.