Citation Nr: 1311860 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 10-33 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as bipolar disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In a February 2010 document, the Veteran requested a hearing before a Veterans Law Judge at the RO. However, in his substantive appeal dated August 2010 he indicated that he did not want an appeal, and his representative confirmed this by letter in February 2012. As such, his hearing request is deemed withdrawn. The Veteran was denied entitlement to service connection for a borderline personality disorder in July 1986, July 1990, August 1990, and April 2005 rating decisions. In adjudicating the Veteran's current claim, it is noted that the Veteran is now diagnosed with bipolar disorder (in addition to personality disorder). The Veteran is seeking service connection for a disability that is a distinct from the one at issue in his prior claim. Therefore, new and material evidence is not necessary to consider this claim. See Boggs v. Peake, 520 F.3d. 1330, 1336 (Fed. Cir. 2008), see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). The record reflects diagnoses for various psychiatric disabilities. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held 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. Medical evidence of record contains diagnoses of mood disorder, adjustment disorder, and major depression, in addition to the claimed bipolar disorder. Thus, while the Veteran specified that he was seeking service connection for bipolar disorder, the claim has been broadened to include other psychiatric disabilities and is recharacterized accordingly. Finally, the Board notes that an April 2009 rating decision characterized the issue as whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bipolar disorder. However, the record shows that after the October 2008 rating decision denying service connection for bipolar disorder, the Veteran submitted a timely NOD in February 2009 and therefore the decision did not become final. As such, the Board finds that this appeal stems from the October 2008 rating decision and has thus identified the issue on appeal as stated on the title page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for an acquired psychiatric disorder, to include bipolar disorder and depression. The Veteran has maintained that his psychiatric symptoms began in and were treated during service. Lay statements have suggested that the Veteran may have had multiple disorders during service. Alternately, in an Informal Hearing Presentation dated April 2013, his representative asserted that because the Veteran was diagnosed with bipolar affective disorder as early as 1990, and his records since 2007 indicate that he does not have a diagnosis of a personality disorder on Axis II, the Veteran's original diagnosis of personality disorder was incorrect and he was actually suffering from bipolar disorder in service. In July 1990 the Veteran's representative notified the VA that the Veteran's spouse had found an empty medication container for "Mellaril, 25mg, three times daily" dated June 1985 that had been prescribed by an Army physician. This date is six months prior to his discharge. Very few service treatment records (STRs) have been obtained, especially considering that the Veteran served for 13 years. The record does contain a Mental Health Examination dated July 1985 that recommends discharge from service due to a diagnosis of borderline personality disorder signed by a service psychiatrist, who appears to be the same psychiatrist who prescribed the medication container described by the Veteran's spouse. The record also contains Elimination Proceedings for Personality Disorder dated August 1985 that state that the Veteran was being recommended for elimination because his "behavioral disorder interferes with [his] ability to function as a soldier." His DD Form 214 shows that a personality disorder was the reason for discharge. There are no other STRs referencing the Veteran's mental health; nor are his induction and separation examination reports included. No service personnel records other than the Form DD-214 have been obtained. Moreover, the most recent treatment records in the claims file are dated September 2009. The Board finds that a remand is necessary in order to ensure that all pertinent outstanding records, including VA treatment records, are associated with the claims file. 38 U.S.C.A. § 5103A (West 2002 and Supp. 2012); 38 C.F.R. § 3.159(c) (2012). Private treatment records show that the Veteran was hospitalized twice at Augusta Mental Health Institute. The first hospitalization was for 12 days in May 1990, with an admitting diagnosis of "major depression and differential to include bi-polar or uni-polar affective disorder." The final Axis I diagnosis was major depression, severe, recurrent, without psychotic features. The second hospitalization was from June 1993 to August 1993 with an admitting diagnosis of major depression, recurrent, without psychosis. The final Axis I diagnosis was adjustment disorder with depressed mood, with an Axis II diagnosis of paranoid personality disorder. Social Security Administration records show an Axis I diagnosis of bipolar disorder depressed in May 1992, and a diagnosis of depression in August 1992. A private treatment record from Gateway Medical Center Emergency Room shows that he was taking Wellbutrin in September 2004. VA treatment records from the Clarksville VA Community Based Outpatient Clinic (CBOC) show diagnoses of mood disorder from September 2004 to July 2005. In August 2005 the diagnosis changed to bipolar disorder type I, and the Veteran was treated regularly for that diagnosis through at least September 2009. The bipolar diagnosis sometimes included psychotic features and sometimes did not; and his most recent episodes at each treatment appointment varied from euthymic to hypomanic to severely depressed. It is unclear to the Board whether the Veteran currently has an acquired psychiatric disorder that had its onset in service, within one year of service, or that is otherwise related to service. He has competently reported recurrent psychiatric symptoms that suggest a possible nexus between service and his psychiatric disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, a medical examination with opinion is required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC) and any other appropriate service department to obtain complete copies of the Veteran's service treatment records and service personnel records. This must specifically include any mental hygiene records, which may have been stored separately. All efforts to locate these records should be documented. If the records are not found, a formal finding of unavailability must be issued and the Veteran should be notified. 2. Obtain VA treatment records, physically or electronically, from the Clarksville CBOC and Nashville VAMC dated from September 2009 to the present that are relevant to the Veteran's mental health. 3. Request that the Veteran identify any private healthcare providers who treated him after September 2009 for his mental health. After securing any necessary authorization from the Veteran, all identified treatment records dated from September 2009 to the present should be obtained, physically or electronically. In light of the changes to 38 U.S.C.A. § 5103A(2)(B), the RO must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. Notify the Veteran that he may submit lay statements from himself, as well as from individuals, such as friends and/or family members, who have first-hand knowledge of the onset and/or chronicity of his psychiatric symptoms. He should be provided an appropriate amount of time to submit this lay evidence. 5. After completing the above, schedule the Veteran for a VA examination. The claims file should be reviewed by the examiner in conjunction with the examination. Any necessary tests should be conducted. After examining the Veteran and reviewing the claims file, the examiner should: a). Identify all psychiatric disabilities found to be present; b) Opine as to whether it is at least as likely as not that any currently psychiatric disability had its onset during service; or within one year of service discharge (i.e. by October 1985), or is otherwise etiologically related to the Veteran's service. In answering this question, please acknowledge and discuss the competent lay evidence regarding the onset of the Veteran's psychiatric problems and the reported continuity of these problems since service in relation to his current diagnosis(es). A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 6. Then readjudicate the appeal. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ STEVEN D. REISS 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) (2012).