Citation Nr: 1005145 Decision Date: 02/04/10 Archive Date: 02/25/10 DOCKET NO. 07-12 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), adjustment disorder and depression. 2. Entitlement to an initial rating higher than 10 percent for a left knee disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran had active military service from September 2004 to February 2005. This appeal to the Board of Veterans' Appeals (Board) is from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In September 2009, as support for his claims, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board, also commonly referred to as a Travel Board hearing. At that outset of the hearing, he withdrew an additional claim he had appealed for service connection for a lung condition, including bronchitis. 38 C.F.R. § 20.204 (2009). The Board is remanding the claims that remain - for service connection for an acquired psychiatric disorder and for a higher rating for the left knee disability, to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. REMAND The Veteran claims that his currently diagnosed psychiatric disorders 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 February 2005, he was treated for mental illness that was variously diagnosed as adjustment disorder with depression, adjustment disorder with social anxiety, and personality disorder, not otherwise specified. The Veteran has continued to receive treatment for psychiatric disorders since service. Post-service VA outpatient records dated from 2005 to 2009 show diagnoses of major depression and PTSD. The Veteran had a VA QTC examination in June 2005. The Axis I diagnosis was adjustment disorder with depressed mood and the Axis II diagnosis was personality disorder not otherwise specified. The examiner commented that, on entrance into service, the Veteran probably had an underlying personality disorder. Personality disorders are not diseases or injuries within the meaning of applicable legislation for compensation purposes and, therefore, generally cannot be service connected as a matter of express VA regulation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. The only possible exception is if there is evidence of additional disability due to aggravation during service by superimposed disease or injury. 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; and VAOPGCPREC 11-99. A Veteran also is presumed in sound mental health when entering the military, except for conditions noted during his enlistment examination. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). To rebut this presumption of soundness at service entrance, there must be clear and unmistakable evidence both that he had a pre-existing psychiatric disorder and that it was not aggravated during his service beyond its natural progression. VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 38 C.F.R. § 3.303(c) indicates that, in regards to disabilities first noted in service, there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established no additional or confirmatory evidence is necessary. Section 3.303(c) goes on to indicate this determination includes situations where the manifestation of symptoms of chronic disease from the date of enlistment, or so close thereto, that the disease could not have originated in so short a period will establish pre-service existence thereof. It equally deserves mentioning that mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered "aggravation in service", unless the underlying condition, itself, as contrasted with mere symptoms, has worsened. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); and Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Moreover, in Verdon v. Brown, 8 Vet. App. 529 (1996), the Court held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service. So additional medical comment is needed to assist in determining whether the Veteran clearly and unmistakably had a psychiatric disorder prior to beginning his military service and, if he did, whether it was exclusively a personality disorder or instead included any of the several other conditions that have been diagnosed during the years since. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). See, too, Clemons v. Shinseki, 23 Vet App 1 (2009) (indicating 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). And even if it is determined the Veteran had a pre-existing psychiatric disorder, further medical comment also is needed concerning whether his military service chronically - meaning permanently - aggravated this condition beyond its natural progression. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. This includes indicating whether he has additional, superimposed disability from aggravation during service of the personality disorder - assuming the conclusion remains that he clearly and unmistakably had a personality disorder prior to beginning his military service. The Veteran also contends that his left knee disability, which is already service connected, has significantly worsened since his VA QTC examination in June 2005, nearly 5 years ago. During his September 2009 hearing, he testified to experiencing instability (albeit slight) and weakness in this knee. He also said there is "something loose" in this knee. So another examination is needed to ascertain the current severity of this disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (where the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Schedule the Veteran for another VA examination to ascertain the current severity of his left knee disability (status post left knee trauma requiring anterior cruciate ligament (ACL) reconstruction with residual pain). Conduct all necessary diagnostic testing and evaluation needed to make this important determination, including measuring the range of motion in this knee on extension and flexion and indicating whether the Veteran has arthritis. Opinion also is needed indicating whether there are objective clinical indications of instability or laxity (and, if there are, whether the instability and/or laxity is slight, moderate or severe). As well, the designated examiner should indicate whether there are objective clinical indications of pain or painful motion, weakness, premature or excess fatigability, and incoordination, and if there are, whether the Veteran has additional functional impairment in this knee as a consequence - including additional limitation of motion above and beyond that shown on examination, such as during prolonged, repetitive use of this knee or when his symptoms are most problematic ("flare ups"). And, if possible, the examiner should try and quantify the amount of this additional impairment, such as by specifying the additional restriction in motion. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, and 4.59. To facilitate making these important determinations, it is absolutely imperative the examiner reviews the claims file for the pertinent medical and other history, including a complete copy of this remand. 2. Also schedule the Veteran for another VA psychiatric examination for additional comment on whether he clearly and unmistakably had a psychiatric disorder, including a personality disorder, prior to beginning his military service. If he did, then medical comment is needed as well on whether this pre-existing condition clearly and mistakably was not chronically (meaning permanently) aggravated by his military service from September 2004 to February 2005 beyond its natural progression - including, if he had a pre-existing personality disorder, such that he now has additional disability due to superimposed disease or injury. For any of the psychiatric conditions that have been diagnosed, both in the past and following this requested examination, if it is determined the Veteran did not have these conditions before beginning his military service, additional medical comment also is needed as to whether it is at least as likely as not that any of these diagnoses (of PTSD, adjustment disorder, depression, major depression, bipolar disorder, etc.) are attributable to his military service or, instead, more likely the result of other unrelated factors. Regarding the PTSD, specifically, there needs to be some indication of whether this is an appropriate diagnosis according to the DSM-IV criteria. And if it is determined the Veteran meets these requirements for this diagnosis, the question remains as to whether this diagnosis is attributable to a verified stressor coincident with his military service. To facilitate making these important determinations, it is absolutely imperative the examiner reviews the claims file for the pertinent medical and other history, including a complete copy of this remand. 3. Then readjudicate the claims for an acquired psychiatric disorder (whatever the diagnosis(es)) and for a higher rating for the left knee disability in light of the additional evidence. If these claims are not granted to the Veteran's satisfaction, send him a supplemental statement of the case and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning the claims 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. _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the Court. 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).