Citation Nr: 1138536 Decision Date: 10/17/11 Archive Date: 10/25/11 DOCKET NO. 08-04 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bipolar disorder, to include chronic adjustment disorder. 2. Entitlement to service connection for a personality disorder. 3. Entitlement to service connection for polysubstance abuse with substance induced mood disorder, to include as secondary to claimed bipolar disorder, chronic adjustment disorder, and/or personality disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1975 to July 1980. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran is seeking service connection for a psychiatric disorder he contends is related to his military service. Although the Veteran contends that he has bipolar disorder, the medical evidence of record shows that the Veteran has been diagnosed with chronic adjustment disorder. Accordingly, the Board has re-characterized the issue as noted on the title page so as to encompass any diagnosed mental disorder that may be related to the Veteran's service. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (providing that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In February 2011, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge. A transcript of this hearing is associated with the claims file. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND The Veteran claims that his currently diagnosed psychiatric disorders and substance abuse are attributable to his military service and, therefore, should be service connected. His service treatment records (STRs) show that, prior to his discharge from the military in July 1980, he was treated for mental illness. A March 1980 inpatient treatment record cover sheet (DA Form 3647) indicates that the Veteran suffered from an acute confusional state, severe, due to consumption of phencyclidine daily and from polydrug dependence on phencyclidine and cannabis sativa. According to a later March 1980 inpatient treatment record cover sheet (DA Form 3647), the Veteran was diagnosed with chronic mixed personality disorder. He was also noted to have improper use of PCP and alcoholism at that time. According to a March 1980 consultation report, the Veteran was noted to have recurrence of toxic psychosis. The Veteran has received treatment for psychiatric and substance abuse disorders since service. Post-service VA outpatient records dated from 2004 to 2005 show various psychiatric diagnoses and polysubstance abuse. Specifically, a December 2004 treatment report indicates that the Veteran has alcohol dependence, cocaine dependence versus abuse, and impulse control disorder of pathological gambling was being ruled out. A February 2005 VA treatment report reflects a diagnosis of unspecified psychosocial circumstances. A July 2005 treatment report shows diagnoses of adjustment disorder with mixed emotional features, cocaine and alcohol dependence in remission, and personality disorder, not otherwise specified. A separate July 2005 VA treatment report indicates that the Veteran's polysubstance abuse was in remission at that time. The Veteran had a VA examination in December 2005. The Axis I diagnoses were alcohol and cocaine abuse in sustained full remission and substance induced mood disorder, resolving; and the Axis II diagnosis was personality disorder not otherwise specified. The Board notes that, generally, personality disorders, mental deficiency, mental retardation and other such "defects" are not "diseases" or "injuries" within the meaning of governing regulations. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127. However, evidence of additional disability resulting from a mental disorder that is superimposed upon and aggravates a congenital defect such as a personality disorder or mental deficiency during service may be service-connected. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also VAOPGCPREC 82-90, 55 Fed Reg. 45,711; Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); and Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). Given the psychiatric complaints and substance abuse noted during service, as well as the VA treatment records showing current diagnoses of psychiatric disorders and substance abuse, a VA examination is warranted to determine the etiology of any currently diagnosed mental disorder(s). Additionally, an examination and opinion is needed for purposes of addressing whether the Veteran's personality disorder was subject to a superimposed psychiatric disability; whether any current psychiatric disorder had its onset in service and is not the result of willful misconduct; and whether any polysubstance abuse with substance induced mood disorder is secondary to any diagnosed psychiatric disorder (direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (1999); see also VAOPGCPREC 2-98, 63 Fed. Reg. 31,263 (1998)). Lastly, VA's duty to assist includes obtaining records in the custody of a Federal department or agency and making reasonable efforts to obtain private medical records. 38 C.F.R. § 3.159(c)(1), (2); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that where material VA medical records are not included in the claims file, a remand is necessary to acquire such records because VA is deemed to have constructive knowledge of documents generated by VA agents or employees). During his February 2011 hearing, the Veteran testified that he was seen at VA Medical Centers (VAMCs) in San Francisco and Palo Alto beginning in July 1980. He also reported that he has received treatment at the Menlo Park VA Outpatient Clinic (VAOPC) since 2005, with future appointments currently scheduled. Additionally, the Veteran reported that in 1984 or 1985, he underwent drug rehabilitation at the Merritt Peralta Institute in Oakland, California. According to a February 2005 statement, the Veteran also reported receiving treatment at a hospital in or around Ft. Lewis and at Letterman Hospital in 1980. VA has not yet attempted to obtain these potentially relevant medical records. Accordingly, a remand is required to attempt to obtain both private and VA medical records. Accordingly, this case is REMANDED for the following actions: 1. Obtain medical records from both the San Francisco and Palo Alto VAMCs pertaining to all mental health and substance abuse treatment provided to the Veteran from July 1980 to the present, and for any similar treatment provided at the Menlo Park VAOPC from November 2005 to the present. 2. After obtaining any required release forms, request from the Merritt Peralta Institute in Oakland copies of all records related to any substance abuse treatment received by the Veteran in approximately 1984 or 1985, as well as any treatment received after those dates to the present. 3. Obtain copies of any hospitalization or treatment records for mental health or substance abuse treatment provided to the Veteran at Ft. Lewis and at Letterman Hospitals during 1980. 4. Following the completion of the above, the Veteran should be scheduled for a VA psychiatric examination to determine the nature, extent, onset and etiology of any diagnosed psychiatric disability, including, but not limited to, bipolar disorder, adjustment disorder, personality disorder, and polysubstance abuse with substance induced mood disorder. All indicated studies should be performed, and all findings should be reported in detail. The claims file must be made available to and reviewed by the examiner. As part of the examination report, the examiner is requested to provide a medical opinion concerning each of the following matters: a. Is it at least as likely as not (i.e., at least a 50 percent probability or greater) that any currently diagnosed psychiatric disorder, to include bipolar disorder, chronic adjustment disorder (including claimed seasonal affective disorder starting in 1980), and any other diagnosed condition, is related to an event, injury, or disease in service? b. With respect to any diagnosed personality disorder, the examiner is requested to address whether the veteran's condition is a congenital or developmental "disease" or "defect." c. For any diagnosed personality disorder that is a disease, an opinion is requested as to whether it is at least as likely as not aggravated by the Veteran's period of active service beyond its natural progression. d. For any diagnosed personality disorder that is a defect, an opinion is requested as to whether it is at least 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. e. For any diagnosed polysubstance abuse condition, to include polysubstance abuse with substance induced mood disorder, an opinion is requested as to whether it is at least as likely as not secondarily related to, caused by, or aggravated by, any diagnosed psychiatric disorder. A complete rationale must be provided for all expressed opinions. In the extraordinary circumstance that the examiner cannot provide a requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. Thereafter, the claims on appeal should be readjudicated. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate opportunity to respond. The matter should then be returned to the Board, if in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ RICHARD C. THRASHER Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).