Citation Nr: 1044006 Decision Date: 11/22/10 Archive Date: 12/01/10 DOCKET NO. 04-38 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), to include as secondary to a service-connected left shoulder disability. REPRESENTATION Appellant represented by: Darla Lilley, Attorney ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active military service from March 1982 to March 1986. The appeal originally came before the Board of Veterans' Appeals (Board) from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied a claim for entitlement to service connection for PTSD. In an August 2004 statement of the case, the RO reopened the issue of service connection for a left shoulder disorder. In July 2006, the Board also reopened the claim for entitlement to service connection for a left shoulder disorder and remanded both matters to the RO to afford due process and for other development. In a December 2009 Board decision, the Board granted service connection for a left shoulder disability and denied the Veteran's claim for service connection for PTSD. In an October 2010 Order, the Court granted a Joint Motion for Remand (JMR) filed by the parties and partially vacated the December 2009 Board decision as it pertains to the denial for service connection for PTSD. The case was thereafter returned to the Board. The Board observes that the characterization of the Veteran's service connection claim has changed during the pendency of this appeal, and is shown on the title page. Initially, the Board notes that service connection was previously denied for PTSD in a June 2004 rating decision; however, given the Veteran's diagnosis of antisocial personality disorder, mood disorder, bipolar disorder, and rule out other psychiatric disorder, the Board has recharacterized the issue on appeal to include any diagnosed psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (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). REMAND In light of points raised in the Joint Motion, and review of the claims file, the Board finds that further action on the claim on appeal is warranted. It was noted that the Board had failed to address whether the Veteran's has an acquired psychological disability other than a personality disorder, and if so, whether that disorder was caused or aggravated by his active service or left shoulder disability. As an initial matter, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court, are applicable to this appeal. The RO provided the Veteran with VCAA notice as to all elements of the claim in correspondence dated in October 2003 and September 2006. In correspondence dated in September 2006, he was notified of how VA determines the disability rating and effective date when a disability is found to be connected to service. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran claims he has an acquired psychiatric disorder either due to or aggravated by active service or by his service- connected left shoulder disability. Personality disorders are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). A preexisting injury or disease will be considered to have been aggravated by active military 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. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2010). Service connection also may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Service treatment records, including a December 1981 enlistment examination, August 1983 physical examination, and October 1983 mental status evaluation reports, are silent for any psychiatric disability. Service personnel records associated with the claims folder, likewise, do not include any documents referring to a psychiatric impairment. Since his separation from service, the Veteran has been diagnosed with substance abuse and toxic psychosis (May 1988 private treatment record); rule out schizophrenia, rule out personality disorder, and substance abuse (June 1988 county psychiatric consultation); anxiety disorder (June 1989 county psychiatric consultation); dysthymic disorder (August 1994 county psychiatric consultation); PTSD and bi-polar with psychotic features and poly-substance dependence, with stressors including incarceration (September 1998 prison psychiatry examination report); and PTSD and possible schizophrenia and psychotic disorder (March 2001 private psychiatry note). In an answer to the PTSD questionnaire, the Veteran stated that his stressors included the injury to his shoulder and subsequent dislocations, and being treated badly while in the military. In a September 2003 prison psychology record, the Veteran described a long history of hearing the voice of his military commander and flashback ruminations about the amputation of his wife's leg and her death in a multi-vehicle accident. He also described obsessive compulsive behavior such as rechecking locks. The examiner noted he had previously been on a host of antipsychotic medications, and that he had a dangerous verbal tirade in the yard. The examiner diagnosed PTSD and obsessive compulsive disorder with psychotic features. The Veteran continued to be treated for PTSD from September to November 2003. In a September 2003 statement, the Veteran reported that occasionally he woke up in the middle of the night in a startling type of way, holding his left shoulder with a racing heart rate and fast breathing, dreaming that his shoulder had dislocated. He also reported that he had dreams about when he was in the Army, and sometimes, something would happen during the day or night that will bring back all those bad memories. In an October 2003 prison psychology note, the Veteran complained of flashbacks of an incident with his officer who caused him to get a bad conduct discharge and hearing his voice give him commands. In an October 2007 VA psychological examination report, the Veteran stated he had a typical childhood and graduated in 1981. However, the examiner noted that the claims file included a history of misdemeanor offenses prior to the military, and a moral waiver for his enlistment which the examiner reported suggested emotional instability. The examiner noted favorable ratings from his immediate supervisors during his initial year in Germany; however, after incurring a shoulder injury during a training exercise, the Veteran contended that his unit leadership turned against him. The Veteran's personnel records also contained reports that the Veteran received an administrative separation under general conditions in September 1983, but was successfully appealed and changed to honorable conditions effective date March 1986. The Veteran reported his stressors are associated with his contention of unfair and wrongful treatment by his superiors, including requirements to submit to urinalysis, threats of a jail term if he did not cease his complaints about his shoulder, and the mental anguish incurred from a wrongful discharge. The Veteran reported that after the military he got heavily involved in drugs and criminal activity, and met his second wife during that time. He admitted to lying about traumatically witnessing her death in a vehicle accident so that he could gain court's sympathy for a more lenient sentence, and that his wife is still alive. The examiner detailed the Veteran's post service social, legal and medical history, noting his incarcerations and his psychiatric treatment. Upon examination, the examiner found that the Veteran did not meet criterion A for the diagnosis of PTSD as he was not exposed to a traumatic event in which he experienced, witnessed, or confront with an event or events that involved actual or threatened death or serious injury or a threat to the physical integrity of himself or others, nor was his response reported to have involved intense fear, helplessness, or horror. The examiner found that although the Veteran claims recurrent and intrusive distressing recollections of his military experience, he does not exhibit psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of his traumatic event. The examiner further noted that it was the reminiscence of the event that antagonizes the Veteran because he recalls the experience as unfair to him. The examiner found that the Veteran failed to meet the DSM-IV criteria for efforts to avoid traumatic stimuli, as there was no evident effort to avoid thoughts, feelings, or activities associated with the trauma. The examiner further noted that the Veteran reported symptoms of physiological arousal; however, the examiner indicated that it would be difficult to separate the influence of incarceration on the presence of these symptoms or to dissect his strong anger about a specific perceived wrong from general irritability. The examiner reported that his symptoms do not appear to be related to changes in impairment in functional status and quality of life, insofar as antisocial behavior pre-existed his military service. The examiner determined that by history, the Veteran meets the DSM-IV diagnostic criteria for a personality disorder (antisocial personality disorder), and that his symptoms were not caused by or the result of PTSD, as the Veteran did not meet the DSM-IV criteria for PTSD. The examiner diagnosed mood disorder and antisocial personality disorder. Although the October 2007 VA examiner gave a primary diagnosis of antisocial personality disorder, which cannot be service connected, the examiner also gave a diagnosis of mood disorder. In light of the foregoing, the Board finds that a VA examination is necessary to obtain a medical opinion which clearly addresses the questions of whether the Veteran's psychiatric disorder was due to or permanently worsened by his active service or service- connected left shoulder disability. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and obtain the names and addresses of all medical care providers, VA and non-VA, who treated the Veteran for his psychiatric disability. After the Veteran has signed the appropriate releases, any records not currently contained in the claims file should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. After the above has been done, the RO should schedule another VA examination of the Veteran, and request the VA psychologist or psychiatrist to offer an opinion as to a. whether the Veteran's current psychiatric disorder is either related to his military service; or if his psychiatric disorder is determined to have preexisted service, the examiner must also address the issue of whether his condition was aggravated by service, AND b. whether the Veteran's current psychiatric disorder is caused or aggravated by his left shoulder disability. Prior to the examination, the claims folder must be made available to the psychiatrist or psychologist for review of the case. A notation to the effect that this record review took place should be included in the report of the physician. All indicated tests and studies are to be performed. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 4. After ensuring that the development is complete, the RO should re-adjudicate the claim. If not fully granted, issue a supplemental statement of the case before returning the claims to the Board, if otherwise in order. 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). 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. 2010). _________________________________________________ RENÉE M. PELLETIER 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).