Citation Nr: 22036768 Decision Date: 06/27/22 Archive Date: 06/27/22 DOCKET NO. 20-02 706 DATE: June 27, 2022 ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 2009 to April 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021 the Veteran testified before the undersigned Veterans Law Judge in a video teleconference hearing. A transcript of the testimony offered at the hearing has been associated with the record. The Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Veteran's original claim for service connection for posttraumatic stress disorder has been expanded to include his other possible psychiatric disorders, to include posttraumatic stress disorder, and the claim has been recharacterized as such on the title page. For the reasons explained below the Board finds that further evidentiary development is required before the claim on appeal can be adjudicated. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder is remanded. The Veteran is claiming service connection for an acquired psychiatric disorder, to include as the result of military sexual trauma (MST) during her period of active- duty service. In a March 2018 statement in support of her claim the Veteran reported following the assault she was led to heavy drug use as a way to cope with the trauma of the incident. Initially the Board notes that the Veteran's February 2009 enlistment examination is silent for any mention of a pre-existing psychiatric disorder. The Veteran's STRs contain an August 2011 treatment note indicating that the Veteran sought mental health treatment for depression following a sexual assault incident which occurred during her deployment to Afghanistan. The Veteran's service treatment records also reflect that she sought mental health treatment while on active duty. Another August 2011 STR note reflects that while in service the Veteran was diagnosed major depression, recurrent moderate as well as adjustment disorder, with disturbance of emotion and conduct. The Veteran was most recently afforded a VA PTSD examination in September 2018. At that time the examiner determine that the Veteran did not meet the DSM-5 criteria for PTSD. The examiner instead diagnosed unspecified depressive disorder with anxious stress and opiod use disorder, severe, in early remission. The examiner opined that the opiod use disorder was the Veteran's primary diagnosis and her mental health symptoms were secondary and likely exacerbated greatly by her substance abuse. Additionally, the examiner opined that it was less likely than not that the Veteran's current mental health symptoms were related to her military service, but instead related to her difficult childhood and chronic, severe substance abuse. In December 2018, two lay statements were added to the claims file. In the statements the Veteran's sister and father attested that the Veteran did not suffer from any mental health symptoms prior to entering service, but upon discharge has exhibited signs of depression and anxiety. During the July 2021 Board hearing the Veteran testified that while she had no mental health disorder symptoms prior to entering service, following the sexual trauma incident she began to experience depression and anxiety. She also testified that following the assault she developed a substance abuse issue, as a way to self-medicate. She testified that following the incident in service she has continued to experience symptoms of depression and anxiety and was currently receiving mental health treatment. The Board notes that VA treatment records do reflect ongoing mental health treatment. Upon review of the claims file, particularly additional lay and medical evidence added to the claims file since the last VA examination in September 2018, the Board finds that an addendum opinion should be requested to assess the nature and etiology of any acquired psychiatric disability. Additionally, the Board notes that the September 2018 VA examiner in her examination report referenced records reviewed from the AHLTA, which the Board notes is a system of electronic medical records for military members. The identified records do not appear to be associated with the evidence of record and there is no indication that the AOJ has attempted to obtain them. As such, on remand the AOJ must make all reasonable efforts to obtain such records. Finally, the Board notes that while the Veteran is presumed to have been sound upon enlistment in the Army as to an acquired psychiatric disorder, based on the opinion of the September 2018 VA examiner, medical clarification is needed on whether the Veteran has any acquired psychiatric disorders which pre-existed her active service. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In such cases where a preexisting disorder is not noted at service entrance, the burden is on VA by a "clear and unmistakable evidence" standard to show both a) the disorder preexisted service and b) the preexisting disorder was not aggravated in or during service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The Secretary (of VA) may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either 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) (citing Wagner, 370 F.3d at 1096) (emphasis added); see also Horn v. Shinseki, 25 Vet. App. 231 (2012). To allow for proper legal analysis of a Veteran's claim as it pertains to the claimed disability, medical clarification may be necessary as to whether the Veteran's condition is a congenital or developmental "disease" or "defect." See Id.; Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). If the claimed disorder is a disease, an opinion may be required as to whether it was as likely as not aggravated by the Veteran's period of active service beyond its natural progression. If the claimed disorder is a defect, an opinion may be required as to whether it was as likely as not subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. Congenital or developmental defects themselves are not diseases or injuries within the meaning of the applicable legislation and are generally not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9 (2015); see Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection is only possible if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; VAOPGCPREC 11-99. The Board does recognize that the Veteran's treatment records make no mention of any pre-existing acquired psychiatric disorders. However, the September 2018 examiner noted that it was possible that the Veteran's current mental health symptoms were related to her difficult childhood, and thus pre-existed service. The examiner however did not provide an analysis consistent with 38 U.S.C. § 1111 and 38 C.F.R. § 3.304 regarding the possibility of a pre-existing condition. Therefore, the Board finds on remand the addendum opinion must also address this specific issue. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant private and/or VA treatment records, including outstanding medical records from the AHLTA system. Should such exist, associate such with the claims file. 2. After the record search is complete, and any new records are added to the claims file, obtain an in-person VA PTSD examination from an appropriate and qualified VA psychologist or psychiatrist to address the nature and etiology of the Veteran's acquired psychiatric disorder. The claims file including a copy of this remand must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. All necessary tests and studies should be accomplished, and all pertinent symptoms and clinical findings should be reported in detail. The examiner should provide an opinion as to the following: a) Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the Veteran has any acquired psychiatric disorder which pre-existed service, and if so, whether it is a pre-existing condition that is not congenital, or a congenital condition? b) If so, is there clear and unmistakable evidence that the pre-existing acquired psychiatric disorder was NOT aggravated in or during service? c) If the Veteran's pre-existing condition is a congenital defect, is there evidence of additional disability due to aggravation during service of the congenital defect by any superimposed disease or injury? d) If there is not clear and unmistakable evidence both that the Veteran's acquired psychiatric disorder preexisted service, was not congenital and was NOT aggravated by service then the Veteran must be considered to have been sound at entry without a diagnosis of an acquired psychiatric disorder. Based upon that premise, is it approximately at least as likely as not that the Veteran's acquired psychiatric disorder had its onset during active service or is related to any in-service injury, event, or disease, to include her claimed in- service military sexual trauma. When considering this question, the examiner is to consider all lay statements of record carefully, VA treatment records and private treatment records and evaluations. The examiner's attention is invited to service treatment records reflecting in-service mental health treatment, including the August 2011 STR mental health treatment notes which reflect that the Veteran was treated for depression while still on active duty. The examiner is also asked to consider and discuss the Veteran's credible July 2021 testimony in which she asserts that she did not have symptoms of depression and anxiety prior to entering service, however such symptoms developed during active duty and have continued since. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). After completing the requested actions, readjudicate the claim in light of all pertinent evidence and legal authority. If the benefit sought remains denied, furnish to the Veteran and her representative with a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.