Citation Nr: 22019455 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 18-29 804 DATE: April 1, 2022 ORDER The petition to reopen a claim of entitlement to service connection for an acquired psychiatric disability is granted. Entitlement to service connection for an acquired psychiatric disability, claimed as depression is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. A June 2010 rating decision last denied service connection for a depressive disorder; evidence pertaining to the Veteran's acquired psychiatric disability since the last final rating decision was not previously submitted, relates to unestablished facts necessary to substantiate the claim, and is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 2. Giving him the benefit of the doubt, the Veteran's diagnosed acquired psychiatric disability had its onset in service or is etiologically related to his active service. CONCLUSIONS OF LAW 1. The June 2010 rating decision which denied the Veteran's claim for a depressive disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.160(d). 2. The evidence received since the last final June 2010 rating decision is new and material, and the claim for service connection for an acquired psychiatric disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving doubt in the Veteran's favor, the criteria for service connection for an acquired psychiatric disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2006 to May 2009. This case comes before the Board from a January 2014 rating decision. The Veteran testified before the undersigned Veterans Law Judge in November 2021. A copy of the transcript is of record. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disability. At the time of the last final denial of the Veteran's claim for service connection for a depressive disorder in June 2010, evidence of record included the available service treatment records and post service treatment records. Evidence associated with the claims file since the previous June 2010 denial includes statements and testimony reflecting continued issues with the Veteran's mental health, outpatient treatment records and numerous examinations. The Veteran has additionally submitted a buddy statement, dated in March 2013, from a fellow servicemember attesting to taking the Veteran to and from his mental health appointments and picking up his medications while in service. Based on this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim for service connection for an acquired psychiatric disability is reopened. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 2. Entitlement to service connection for an acquired psychiatric disability. The Veteran contends that he has an acquired psychiatric disability related to service. The Board concludes that the Veteran has a current diagnosis of an acquired psychiatric disability that began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Initially, the Board notes that a veteran is presumed in sound condition except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. at 225, 227 (1991). The Board notes that the Veteran's full service treatment records, including his enlistment examination and separation examination, have not been located. Specifically, in a December 2013 letter, the Veteran was informed that although the RO had requested all of his service treatment records for his period of active duty, they had not been received and it was determined that all further efforts would be futile and the records are not available. The Board finds that because the Veteran's full service treatment records, including his enlistment examination, could not be located, the Veteran is presumed to have been sound at the time of entrance with respect to his mental health. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) (citing Crowe v. Brown, 7 Vet. App. 238, 245 (1994)) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected"). Moreover, although the Veteran later reported in an in-service treatment record that he had experienced mental health issues as young as 8 (see January 2009 service treatment record), the Veteran's reports that he previously experienced a mental issue do not constitute the "clear and unmistakable evidence" needed to rebut the presumption of soundness upon entry into service. Indeed, lay statements by a Veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness; rather, supporting medical evidence is needed to establish the presence of a preexisting condition. The Board thus finds that the Veteran is presumed to have been in a sound condition (mental health) when he entered service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Service treatment records reflect complaints and treatment for atypical depression (April 2008, November 2008, February 2009, September 2009), depression (November 2008, January 2009) and a depressive disorder (September 2008, January 2009). The Veteran continues to report that he experiences chronic mental health issues. These assertions have remained consistent in both his VA treatment records, statements submitted in support of his claim, and testimony. At the Veteran's November 2021 BVA hearing he testified that he first started receiving treatment for a mental health issue around 2008 and continued treatment with the VA after service. See BVA Hearing Transcript (T.) at 4. The Veteran has additionally submitted a March 2013 statement from a fellow servicemember who attests that he transported the Veteran to and from his mental health appointments and would take him to pick up his medications at the naval hospital. Numerous inadequate VA etiological opinions have been obtained with respect to the Veteran's acquired psychiatric disability. The Veteran was initially provided a February 2013 VA examination that diagnosed dysthymic disorder and intermittent explosive disorder. The examiner opined that he could not provide an etiological opinion as to whether the Veteran's psychiatric disability is at least as likely caused by his military service without resort to mere speculation. Adequate rationale for being unable to provide an opinion was not provided. The RO attempted to obtain an addendum opinion in October 2013 but the examiner at the time stated that the opinion should be answered by a psychologist or psychiatrist and he was a specialist in internal medicine. A November 2013 VA mental disorder examination was subsequently obtained. The Veteran was diagnosed with a dysthymic disorder. The examiner opined that it was more likely than not that his mood disorder is based in early family conflicts and was exacerbated by his marital conflicts while in the military. As noted above, the Board has determined that the Veteran did not have a preexisting mental health disorder upon entry into service. Another medical opinion was obtained in April 2017. Unfortunately, the VA examiner did not apply the correct standard in providing her medical opinion. Although the VA examiner opined that the Veteran's psychiatric disability was less likely than not related to service (the correct standard for disabilities not preexisting service), she then rationalized that this was because his psychiatric disability had preexisted service. As the opinion lacks a discussion of the evidence in light of the correct applicable standard, and the Board has determined that the Veteran did not have a preexisting mental condition, this opinion is accorded no probative value. A subsequent July 2017 opinion noted that the Veteran's claimed psychiatric disability clearly and unmistakably existed prior to service and was not clearly and unmistakably aggravated beyond its natural progression by an in-service injury, event or illness. The rationale then noted that it was aggravated beyond its natural progression during service. The examiner shortly thereafter stated that there is no indication in the record to suggest that the preexisting depression was aggravated by an in-service injury, event or illness. This contradictory opinion is also accorded no probative value. While VA could undertake additional development with respect to this disability, based on the fact that the Board has determined the Veteran did not have a preexisting mental disorder prior to entrance into service, that the Veteran was noted to have a psychiatric disability in service, has consistently reported symptoms throughout the record, and continues to have the same complaints and findings, the Board will resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the Board concludes that a grant of service connection for an acquired psychiatric disability is warranted. The nature and extent of the problems related to service are not before the Board. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. Service treatment records reflect issues with the Veteran's back in July 2008 and August 2008. The Veteran continues to report that he experiences chronic back issues. These assertions have remained consistent in both his VA treatment records, statements submitted in support of his claim, and testimony. At his November 2021 Board hearing he testified that he never had back issues prior to service but while in the military he began to have pains in his lower back and went to sick call because he could not move. See BVA T. at 6. In a March 2013 statement, a fellow servicemember noted that on or about 2007 or 2008 he remembers that the Veteran was brought into the health center on base after injuring his lower back after a PT run. The Veteran underwent a VA examination in April 2018 for his spine. He was diagnosed with congenital spina bifida occulta and congenital transitional anatomy. Unfortunately, the VA examiner did not apply the correct standard in providing her medical opinion. Although the VA examiner opined that the Veteran's back disability was less likely than not related to service (the correct standard for disabilities not preexisting service), she then noted in the rationale that he had a congenital spine abnormality. As the opinion lacks a discussion of the evidence in light of the correct applicable standard, an additional medical opinion is needed. Additionally, the examiner noted that there was no evidence in the service treatment records of chronic back complaints. However, as noted above a fellow servicemember attested that he remembers the Veteran injuring his back around 2007 or 2008. Where VA provides a veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, remand is warranted. The matters are REMANDED for the following action: Obtain an addendum opinion to determine the nature and etiology of the Veteran's back disability. 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 a copy of this remand, the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran if deemed necessary by the examiner and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: (a) Whether the back disability clearly and unmistakably pre-existed service. (b) If the disability clearly and unmistakably pre-existed service, whether the back disability clearly and unmistakably was not aggravated (worsened beyond its natural progression) by service. (c) In the alternative, if it is determined that the disability did not clearly and unmistakably pre-exist service, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's back disability originated during service, within one year of service separation, or is otherwise etiologically related to the Veteran's service. In rendering each of the above-requested opinions, the examiner should address the March 2013 Buddy Statement indicating the Veteran experienced a back injury around 2007-2008 and service treatment records noting treatment from his back in 2008. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.