Citation Nr: 1229125 Decision Date: 08/24/12 Archive Date: 08/30/12 DOCKET NO. 08-36 798A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an acquired psychiatric disorder, to include bulimia, paranoia, manic depression, dysthymic disorder, drug overdose, depressive disorder, schizoaffective disorder, bipolar type, schizoaffective disorder, depressed type, personality disorder not otherwise specified (NOS) with borderline as well as schizotypal traits, bipolar disorder with psychotic features, alcoholism, polysubstance abuse, polysubstance-induced mood and psychotic disorder, and organic affective disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from June 1981 to April 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). VA is obligated to construe communications from the Veteran "in a liberal manner for purposes of determining whether they raise issues on appeal." Robinson v. Mansfield, 21 Vet. App. 545 (2009). The Board recognizes that the record indicates the Veteran has been diagnosed with various psychiatric disorders since her discharge from military service, to include bulimia, paranoia, manic depression, dysthymic disorder, drug overdose, depressive disorder, schizoaffective disorder, bipolar type, schizoaffective disorder, depressed type, personality disorder NOS with borderline as well as schizotypal traits, bipolar disorder with psychotic features, alcoholism, polysubstance abuse, polysubstance-induced mood and psychotic disorder, and organic affective disorder. Hence, the Board has recharacterized and will adjudicate the Veteran's claim of service connection for an acquired psychiatric disorder, to include bulimia, paranoia, manic depression, dysthymic disorder, drug overdose, depressive disorder, schizoaffective disorder, bipolar type, schizoaffective disorder, depressed type, personality disorder NOS with borderline as well as schizotypal traits, bipolar disorder with psychotic features, alcoholism, polysubstance abuse, polysubstance-induced mood and psychotic disorder, and organic affective disorder, accordingly. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In a July 2012 Written Brief Presentation, the Veteran's representative noted that her service personnel records have not been associated with her claims file. Remand is required to obtain service personnel records. Moreover, the record shows that the Veteran has reported in-service treatment at various hospitals for her psychiatric disorder, including "Tripler Hospital in Hawaii" and an unidentified hospital in Orlando, the records of which also appear to be outstanding. The available service treatment records confirm that she did in fact undergo treatment at Tripler Hospital. Finally, the record reflects psychiatric treatment at various private medical facilities, including the "West Florida Community Care Center (WFCCC), in Milton, Florida," the "Cope Center," and the "University Hospital." VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 C.F.R. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records. 38 C.F.R. § 3.159(c)(2). Hence, in accordance with the duty to assist, VA should make an effort to obtain these records. The Veteran has also reported that she is in receipt of Social Security (SSA) disability benefits due to her current psychiatric disorder. When the VA is put on notice of the existence of SSA records which have the reasonable possibility of substantiating the Veteran's claim for benefits it must seek to obtain those records before proceeding with the appeal. See Golz v. Shinkseki, 590 F.3d 1317 (Fed. Cir. 2010). The duty to assist includes requesting information and records from the SSA which were relied upon in any disability determination. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996). Hence, in accordance with the duty to assist, VA should make an effort to obtain these records. The available service treatment records indicate the Veteran was treated by emergency care in September 1981 for alcohol intoxication. She was also treated by emergency care in January 1982 for abuse of alcohol and for being "emotionally disturbed." In February 1982, she was recommended for entry into the Counseling and Assistance Center (CAAC) program for exhibiting behavior indicative of a binge drinking pattern. In a March 1982 sick call note, the practitioner noted subjective symptoms of "stress" and diagnosed the Veteran with an alcohol problem. A March 1982 mental health treatment record shows a provisional diagnosis of "chronic alcoholic;" "trouble dealing with stress." A March 1982 Discharge Report of Medical History reflects that the Veteran reported experiencing "depression or excessive worry," "nervous trouble of any sort," and "periods of unconsciousness." This report also shows that the Veteran was hospitalized at the Tripler Army Medical Center (TAMC) in Hawaii for alcohol overdose. Post-service treatment records show findings of and treatment for dysthymic disorder, bulimia, severe personal problems, drug overdose, depressive disorder, schizoaffective disorder, bipolar type, schizoaffective disorder, depressed type, schizotypal traits by history, personality disorder NOS with borderline as well as schizotypal traits, bipolar disorder with psychotic features, alcoholism, polysubstance abuse, polysubstance-induced mood and psychotic disorder, and organic affective disorder, since 1987. Notably, a July 1987 private treatment record indicates that the Veteran reported that she has experienced depression since her childhood, prior to her military service. A private treatment record, dated in March 2006, reflects that she described abusing drugs when she was in her teenage years, and that she formerly used alcohol, marijuana, crack cocaine and crystal methamphetamine. However, she also noted that she did not undergo psychiatric treatment until her 20's. Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C.A. §§ 1111, 1137. Under applicable laws and regulations, mere congenital or developmental defects, absent displaced or supernumerary parts, refractive error of the eye, personality disorder and mental deficiency are not diseases or injuries for the purpose of VA disability compensation and generally cannot be service-connected. 38 C.F.R. § 3.303(c). 38 C.F.R. § 4.9. Mental retardation and personality disorders are not diseases or injuries for compensation purposes, and, except as provided in § 3.310(a) of this chapter, disability resulting from them may not be service-connected. However, disability resulting from a mental disorder that is superimposed upon mental retardation or a personality disorder may be service-connected. 38 C.F.R. § 4.127. Service connection is still permissible for such a defect in the limited circumstance when there has been aggravation of a congenital defect during service by superimposed injury, although not superimposed disease. See VAOPGCPREC 82-90 (July 18, 1990). See also Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. In deciding a claim based upon aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Importantly, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306; see also 38 U.S.C.A. § 1153 (West 2002). Notably, the RO failed to consider and discuss the ramifications of VAOPGCPREC 3-2003 and the holding in Wagner, supra, regarding the preexisting issue, or to provide the Veteran with notice of the laws and regulations that pertain to this theory of entitlement. Moreover, in a Notice of Disagreement (NOD), received in January 2008, the Veteran indicated that she was taken advantage of sexually during service. The RO has failed to develop or adjudicate the claim on the basis of service connection based on a personal assault, or to provide notice of the laws and regulations that pertain to this theory of entitlement. In view of the above, multiple possible theories of entitlement exist in this case: direct service connection for an acquired psychiatric disorder; or alternatively, service connection for an acquired psychiatric disorder based on personal assault; or alternatively, service connection based on aggravation of a preexisting condition. However, a medical opinion has not yet been obtained. When the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Further, the Board notes that where the determinative issue involves medical causation, specifically aggravation of a preexisting condition, competent evidence is required. See Woehlaert v. Nicholson, 21 Vet. App. at 462; Routen v. Brown, 10 Vet. App. at 186. Hence, the Veteran should be scheduled for a VA psychiatric examination to identify and evaluate any psychopathology present, to specifically include bulimia, paranoia, manic depression, dysthymic disorder, drug overdose, depressive disorder, schizoaffective disorder, bipolar type, schizoaffective disorder, depressed type, personality disorder NOS with borderline as well as schizotypal traits, bipolar disorder with psychotic features, alcoholism, polysubstance abuse, polysubstance-induced mood and psychotic disorder, and organic affective disorder. See 38 U.S.C.A. § 5103A (d); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes, the electronic Virtual VA records file was reviewed and did not reveal any VA treatment records pertinent to this appeal. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must send the Veteran a development letter that addresses the provisions of 38 C.F.R. § 3.306 as pertains to claims involving aggravation of a preexisting condition, and claims involving an acquired psychiatric disorder based on personal assault. 2. The RO/AMC must also take appropriate steps to contact the Veteran in order to obtain copies of all outstanding VA or non-VA records referable to treatment for the claimed acquired psychiatric disorder, to specifically include the "WFCCC, in Milton, Florida," the "Cope Center," and the "University Hospital." The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. The RO/AMC must also obtain the Veteran's service personnel records, and any outstanding service treatment records not yet associated with the claims file, to specifically include from TAMC. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claim and a notice that the appellant is ultimately responsible for providing the evidence. The RO/AMC should also inform the Veteran that she can also provide alternative forms of evidence. 4. The RO/AMC must also take all indicated action to contact SSA and request all documents pertaining to any award or denial of disability benefits from the SSA, and specifically request a copy of the decision awarding or denying any benefits and copies of the medical records upon which the SSA based its decision. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). If the records are unavailable, the claims file must be properly documented as to the unavailability of these records. 5. After any outstanding records have been obtained and associated with the claims file, the RO should then schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran's claimed psychopathology, to include bulimia, paranoia, manic depression, dysthymic disorder, drug overdose, depressive disorder, schizoaffective disorder, bipolar type, schizoaffective disorder, depressed type, personality disorder NOS with borderline as well as schizotypal traits, bipolar disorder with psychotic features, alcoholism, polysubstance abuse, polysubstance-induced mood and psychotic disorder, and organic affective disorder. The pertinent evidence in the claims file, along with a copy of this remand, must be made available to the examiner for review, to include the Veteran's lay assertions. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies are to be performed, and comprehensive social, educational, and occupational histories are to be obtained. All clinical findings should be reported in detail, and rendered in accordance with the diagnostic criteria for the condition set forth in the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). The examiner should note that the controlling law provides that no compensation shall be paid if the disability was the result of the person's own willful misconduct or abuse of alcohol or drugs. The examiner should note that if symptoms of posttraumatic stress disorder (PTSD) be observed, where a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate her account of the stressor incident. Also, with claims for service connection for PTSD involving an in-service personal assault, after-the-fact medical evidence may fulfill the requirement for credible supporting evidence that the claimed in-service stressor occurred. Specifically, the examiner must: a) List all psychiatric diagnoses applicable to the Veteran. b) Determine whether the Veteran's psychiatric symptoms meet the criteria set forth in the DSM-IV, to include for bulimia, paranoia, manic depression, dysthymic disorder, drug overdose, depressive disorder, schizoaffective disorder, bipolar type, schizoaffective disorder, depressed type, personality disorder NOS with borderline as well as schizotypal traits, bipolar disorder with psychotic features, alcoholism, polysubstance abuse, polysubstance-induced mood and psychotic disorder, and organic affective disorder. Specific responses must be provided for each of the DSM-IV criteria. c) Take into account all relevant in-service and post-service records and provide an opinion as to whether or not the Veteran had an acquired psychiatric at the time of her entrance into active service, and if so, describe the nature of the disorder. d) If the Veteran entered service with an acquired psychiatric disorder, provide an opinion as to whether or not this disorder increased in severity during service, and if so, opine as to whether or not the increase in severity represented simply a temporary or intermittent flare-up of the pre-service condition without worsening of the underlying disorder, or did an increase in severity represent a worsening of the underlying condition beyond the natural progress of the disorder. e) If not, offer an opinion, consistent with sound medical principles and in consideration of the Veteran's specific contentions, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any acquired psychiatric disability had its onset during her period of active service. An opinion should be rendered for each psychiatric condition with which the Veteran is diagnosed. With respect to any diagnosed PTSD, the examiner must comment on whether or not PTSD is likely related to any in-service personal assault. The examiner should make an independent determination as to whether or not the Veteran's lay statements regarding any such assault appear plausible. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the 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. Examples of types of reasons are the lack of appropriate expertise on the part of the clinician, the Veteran being an unreliable historian, the matter being beyond the current state of learning and knowledge in the relevant field of medicine, or a lack of an adequate factual basis in the record upon which to form an opinion. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO/AMC should readjudicate the claim in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO/AMC must furnish the Veteran and her representative with an appropriate Supplemental Statement of the Case that includes clear reasons and bases for all determinations and afford them a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2011). _________________________________________________ KELLI A. KORDICH 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) (2011).