Citation Nr: 23023643 Decision Date: 04/24/23 Archive Date: 04/24/23 DOCKET NO. 19-10 213 DATE: April 24, 2023 ORDER Entitlement to service connection for acquired psychiatric disability is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The most probative evidence reflects that an acquired psychiatric disorder has been shown to be etiologically related to the Veteran's active service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1988 to August 1988 and from March 1991 to March 1996, with additional service in the National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from September 2017 (acquired psychiatric disorder) and October 2017 (TDIU) rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. These claims were previously remanded in April 2022. Entitlement to service connection for acquired psychiatric disability is granted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that his acquired psychiatric disability had its onset in service. He has diagnoses of schizophrenia, delusional disorder, major depressive disorder (MDD), panic disorder, and social anxiety. See August 2022 Medical Treatment Record - Government Facility. In the Veteran's February 1988 report of medical history, he reported no depression or excessive worry, nervous trouble of any sort, or attempted suicide. In his report of medical examination, psychiatric issues were marked "normal" and he was deemed qualified for service. From March 1991 to March 1994, the Veteran's records were absent psychological or disciplinary issues. In fact, the Veteran received a good conduct medal for his service for that time frame. See May 2017 Military Personnel Record. In May 1994 the Veteran had an evaluation of mental status where he was diagnosed with adjustment disorder, depressed mood, and avoidant/schizoid traits after he returned from being stationed in Japan. The staff psychologist recommended serious consideration for an administrative discharge from service due to the Veteran's diagnoses. See September 1996 STR - Medical. Following his May 1994 diagnoses, the Veteran began receiving counseling statements and punishments for poor work ethic, failure to obey orders, military appearance, disagreements with chain of command, and failure to attend professional military education. During an August 1995 counseling, the Veteran stated he wanted to remain in a non-promotable status and separate from service at the end of his enlistment. In October 1995, a unit commanders request for psychiatric evaluation form was submitted. Positive traits noted were "intelligent" and "appears healthy." Notable emotional difficulties found were carelessness, undependability, slovenliness, depression, and seclusiveness. Problems to the unit were refusal to put forth effort, difficulty with officers and NCO's, continuous infractions of rules, and excessive desire for discharge. Chapter 13 separation plans were recommended. In November 1995 the Veteran received a mental status evaluation that found he did not suffer from a psychiatric disease, defect, or personality disorder that would cause significant defects in judgement, responsibility, or reliability. The Veteran was cleared for administrative action, i.e., separation, and that further retention of the Veteran would likely create additional management problems for the commander. This was completed by an E-4 behavioral science specialist with a medical doctor signing off on it. See May 2017 Miliary Personnel Record. The Veteran's mother submitted a statement that stated he lived with her for 5 years immediately after he left service. She stated he was nervous, withdrawn, and depressed, which made it difficult for him to work or comprehend tasks. See December 2021 Buddy/Lay Statement. The Veteran initially filed a claim for entitlement to service connection for depression in July 1996, approximately four months after he was discharged from active duty service. The Veteran did not seek treatment until October 2011, and a January 2012 medical note showed that the Veteran had not been under any medical care for the preceding 15 years and was not on any medications. In August 2014 he was diagnosed with borderline intellectual functioning. See July 1996 VA Form 21-526 Veterans Application for Compensation or Pension; September 2017 CAPRI. In August 2018, the Veteran submitted an independent medical evaluation in support of his claim. The medical provider reviewed the Veteran's claims file in connection with the evaluation and determined that he met the diagnostic criteria for unspecified anxiety disorder and unspecified depressive disorder, which caused clinically significant impairment or distress in social, occupational, or other important areas of functioning. They opined that it was at least as likely as not that the Veteran's unspecified depressive disorder and unspecified anxiety disorder were the direct result of his active duty service. The medical provider noted that the Veteran's STRs showed that he had been diagnosed with adjustment disorder with depressed mood during service and that his post-service treatment records showed that he continued to report the same symptoms thereafter. It was further noted that there was no indication that the Veteran experienced any psychiatric symptoms prior to service. See August 2018 Medical Treatment Record -Non-Government Facility. The Veteran underwent a VA examination for mental disorders in December 2018. The examiner diagnosed the Veteran with unspecified anxiety disorder but qualified their finding by stating that possible inconsistent responding by the Veteran could have impacted the results of standardized psychological testing with validity scales conducted in connection with the examination. The examiner further noted that the Veteran's self-report during the examination was slightly different from information in the records and that it was unclear if such was an oversight, mild memory confusion, or related to some other issue. However, the examiner noted that the Veteran was able to clearly describe symptoms associated with anxiety. After performing an examination and reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran's unspecified anxiety disorder was incurred in or caused by the claimed in-service injury, event, or illness. In support of the opinion, the examiner acknowledged that the Veteran sought mental health treatment in 1994 for situational distress related to his transition from a base in Japan and was subsequently diagnosed with adjustment personality disorder. However, the examiner explained that adjustment disorder, by definition, referred to the development of acute emotional or behavioral symptoms in response to an identifiable stressor that occurred around the onset of the stressor and was expected to resolve upon the conclusion thereof. In addition, the examiner noted the Veteran had been referred for a mental health evaluation by his commanding officer related to poor performance on the job but emphasized that there was no indication that the Veteran experienced the same issues during or prior to his service in Japan. However, the examiner explained that the Veteran's November 1995 mental status evaluation indicated that he did not have any psychiatric disease, defect, or personality disorder and that his November 1995 separation examination was silent for any mental health complaints. The examiner noted that there was no evidence showing that the Veteran sought treatment for mental health symptoms until 2011. Thus, the examiner found that there was no indication that the Veteran's diagnosed unspecified anxiety disorder was incurred in or caused by the mental health contact in service and/or that resulting diagnostic impression of adjustment disorder, which appeared to be driven by his circumstances and adjustment at the time, and as such, was not indicative of an ongoing mental health disorder. See December 2018 C&P Exam. In November 2021, the Veteran appeared at a hearing in front of the undersigned. He testified that he had continuous symptomatology since 1994 regarding his psychiatric disorder. The Veteran stated that after he came back from Japan, he had problems adjusting, was depressed, and anxious. His depression and anxiety continued after he left service, as well as other symptoms such as difficulty with social interactions, shaking hands, talking to himself, poor concentration, and inability to complete tasks on time or at all. He reported difficulty in maintaining jobs, spending less than 2 years in every job he had since leaving service, and that he last worked in 2011. Furthermore, he stated that he did not seek treatment at VA before 2011 because he thought treatment was only available for combat Veterans. The Veteran's representative further stated that the Veteran spent 6 years in service before any symptoms of personality disorder, schizotypal traits, and an adjustment disorder, whether identified as depression or anxiety, manifested. See November 2021 Hearing Transcript. In April 2022, the Board remanded the issues for further development. Specifically, the Board found the August 2018 private evaluation inadequate because it did not address the Veteran's 15 year gap in between service and treatment. The Board also found that the December 2018 VA examination was inadequate because the examiner failed to consider the significance of the Veteran's counselings and the trouble he got into after his May 1994 diagnosis for adjustment disorder, depressed mood, and avoidant/schizoid traits. Additionally, neither exam addressed evidence showing that the Veteran has been diagnosed with schizophrenia, delusional disorder, avoidant personality disorder, and panic disorder, nor proffered an opinion as to whether these diagnoses were made in error. See April 2022 BVA Decision. In May 2022, the Veteran submitted a statement in support of his claim, describing negative thoughts and premonitions of death. He also explained that his medication worked sometimes but without it, he would harm himself because his thoughts changed when his depression lingered from one day to the next. He also stated that most of the missing 15 or 16 years of work were with a temp service, and that he worked until his problems of talking to himself, not concentrating, and not paying attention began affecting his work. See May 2022 VA 21-4138 Statement In Support of Claim. In July 2022, the Veteran was afforded another VA examination. The VA examiner opined that the Veteran's diagnosis of unspecified anxiety disorder was less likely than not incurred in or caused by his military service. The examiner found the August 2018 private medical opinion was inconsistent with the medical record. The Veteran did not have any complaints, diagnosis, or treatment for a mental disorder in service. The Veteran denied mental health symptoms on the separation exam and a command directed evaluation yielded no diagnosis at the end of his service. The examiner further stated that there had been no consistent symptoms from the time of discharge to present. The most recent examination was three years ago. While the diagnoses rendered on the two exams from 2018 are the same, the conflict was whether or not the anxiety disorder had its origin in service. The VA examiner noted the private examiner did not see the Veteran and did not have full access to the record as the December 2018 VA examiner did. The July 2022 VA examiner agreed with the previous VA examiner in that there was no nexus with military service. The examiner also noted the additional diagnoses were critically evaluated and were ruled out. With regard to the diagnoses made in 2014 (borderline intellectual functioning and avoidant personality disorder), they would both be considered to have existed prior to service and have not been exacerbated beyond their typical progression. See July 2022 C&P Exam. After considering the evidence of record, the Board finds the August 2018 private opinion the most probative evidence of record. The examiner offered a sound conclusion with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Specifically, the examiner noted the Veteran's STRs showed a diagnosis of adjustment disorder with depressed mood during service and that his post-service treatment records showed that he continued to report the same symptoms thereafter. It was further noted that there was no indication that the Veteran experienced any psychiatric symptoms prior to service, which was verified by the Veteran's lack of psychiatric issues on his enlistment paperwork. While the Board's remand stated the August 2018 private opinion failed to discuss the 15 year gap in treatment from the end of service to October 2011, the Veteran testified at the November 2021 Board hearing that he thought VA treatment was only available for combat Veterans. Given the Veteran's psychiatric struggles, to include a diagnosed learning disability in 2014, the Board finds his testimony credible with regards to not seeking treatment between service and October 2011. Therefore, the Board affords the August 2018 private opinion probative weight. The Board finds the July 2022 VA examination to be inadequate as it is unclear whether the VA examiner considered all the available evidence. For instance, the July 2022 VA examiner's direct service connection opinion stated that the Veteran did not have a complaint, diagnosis, or treatment for a mental disorder in service, yet the record clearly showed a May 1994 diagnosis for adjustment disorder, depressed mood, and avoidant/schizoid traits. Furthermore, the examiner appears to be basing his nexus opinion in part on the erroneous lack of complaint, diagnosis, or treatment of a mental disorder in service. As such, the Board affords this examination reduced probative weight. Accordingly, the Board finds that the Veteran's diagnosed acquired psychiatric disability had its onset during active duty service. Therefore, service connection for acquired psychiatric disability is warranted. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Entitlement to a TDIU is remanded. With regard to the TDIU claim on appeal, the Board notes that prior to this Decision, the Veteran was only service connected for his noncompensable hypertension. See October 2017 Rating Decision - Codesheet. Accordingly, the issue of entitlement to a TDIU is deferred pending the rating of the Veteran's now service-connected psychiatric disorder. After the RO has assigned the rating for the newly granted service connection claim, and after it has completed any additional necessary development, the issue of TDIU should be readjudicated in light of the additional evidence; and if the claim is not granted, the matter should be returned to the Board. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following action: 1. Implement the Board's Decision awarding service connection for a psychiatric disorder. 2. Then, after completing the above and any other development that may be indicated, readjudicate the claim of entitlement to TDIU on the merits. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Garey, Attorney-Advisor 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.