Citation Nr: 1303836 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-29 839 ) 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 depression, anxiety and mood swings). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney-at-Law ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran served on active duty from September 1978 to April 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2010 and November 2011, the Board remanded the Veteran's appeal for further development to the RO via the Appeals Management Center (AMC). 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 The Board unfortunately finds that remand is again necessary in this case in order for additional development of the Veteran's claim. The Board notes that, at this point, an essential issue in this case is whether the Veteran has a current acquired psychiatric disorder for which service connection may be granted. The Veteran has claimed that he has had depression, anxiety, mood swings and insomnia since service. There is also a question as to whether he had a psychiatric problem prior to his entry into service (including a personality disorder). The medical evidence of record, however, is inconsistent as to whether the Veteran has a current Axis I diagnosis of an acquired psychiatric disorder that is subject to service connection. Furthermore, no further psychological testing has been conducted to confirm or rule out the presence of a personality disorder. VA treatment records dated from October 2002 to July 2007 are silent for complaints, findings, or a diagnosis of any mental disorder. Posttraumatic stress disorder (PTSD) and depression screens were both negative throughout that period. The first indication of any mental health problem is a February 2008 VA primary care note that shows that the Veteran complained of stress, anxiety, and depression worsening in the past four months. He reported that he was diagnosed with PTSD in the past, gains weight, cannot sleep, has some nightmares, people aggravate him and he has some agoraphobia. The assessment was anxiety/PTSD, and he was prescribed Celexa (also known as Citalopram) and Visteril. (The Board notes, however, that despite the Veteran's report of a previous diagnosis of PTSD, there is no medical evidence supporting that contention and, in fact, in his Notice of Disagreement dated in January 2009, he denied a claim for PTSD saying that his claim was for depression, anxiety and schizoid features.) A July 2008 VA Primary Care note shows no psychiatric symptoms reported on a review of symptoms; however, on a depression screen, the Veteran reported he had had several days over the prior two weeks of feeling depressed, down, hopeless, and with little interest or pleasure. At a July 2009 VA Primary Care visit, the Veteran complained of having some depression lately as his father was recently ill with severe sepsis. He reported being down on occasion for years. He stated he continued on Celexa and that he was doing fair. The assessment was depression and his Celexa (Citalopram) was increased. Subsequent treatment records continued to show the Veteran being treated with Celexa (Citalopram) for depression/anxiety. Despite the Veteran's primary care physician treating the Veteran for depression, he was never referred to VA's Mental Health Clinic for evaluation or treatment. In support of his claim, the Veteran submitted a private psychologist's opinion dated in October 2009 in which she concluded that, as of April 2009, the Veteran more than likely met the criteria for a diagnosis of major depressive disorder, recurrent, severe without psychotic features. (She also made other conclusions that are not relevant for discussion at this point.) She indicated that her conclusions were based solely on the documents that were provided to her, which appear to have included service treatment records and statements made by the Veteran in support of his claim. She did not personally examine the Veteran. The Veteran underwent VA mental health examination initially in April 2011. The examiner did not provide an Axis I diagnosis of an acquired psychiatric disorder, but did provide an Axis II diagnosis of mixed personality disorder, per history (personality disorder, not otherwise specified, with Cluster A and C traits). The examiner stated that the Veteran's occupational and social functioning is quite impaired due to a long standing personality disorder, not a mood or anxiety disorder. The examiner did not conduct any psychological testing. In further support of his claim, in September 2011, the Veteran submitted private mental health treatment records from August to September 2011. As a result of the initial intake evaluation in August 2011, a diagnosis was made of bipolar disorder, mixed, with psychotic features, polysubstance dependence, and obsessive-compulsive traits. At this evaluation, the Veteran reported a long history of both alcohol and crack cocaine use (at least back to the early 1990s), which he claims he used to self-medicate because the psychiatric medications he took did not help to control his mood swings. (It is noted that, except for one positive alcohol screen in September 2003, the VA records are silent for any report of either alcohol or illicit drug use, including the April 2011 VA examination.) In a September 2011 therapy note, the Veteran reported alcohol use off and on since the 1970's and crack cocaine use since 1992. He complained of having depression and mood swings ongoing for several years. He related treatment for depression twice in the 1970's. The assessment was mood disorder, not otherwise specified, rule out bipolar, cocaine abuse, and alcohol abuse. The Veteran was prescribed Wellbutrin and Seroquel. Because of these inconsistent records, the Board remanded the Veteran's claim in November 2011 for a new VA mental disorders examination, which was conducted in March 2012. At that time, the Veteran denied a long history of substance use and instead reported that he had only used alcohol and crack cocaine to stabilize his mood for a few months in 2011 because his medications did not work. He reported that the Wellbutrin and Seroquel had made an enormous difference in his functioning and that he was no longer using alcohol and crack cocaine as the medications had stabilized him. The VA examiner, however, pointed out that the Veteran's history of mental health treatment, functioning and substance abuse was "murky" and "difficult to follow" given the different reports that occur at different points in time, including what the Veteran reported at this examination. In concluding her findings, the examiner stated that the Veteran was found only to meet the criteria for Axis I diagnoses of alcohol abuse and cocaine abuse. She stated that, because the Veteran's report of his use of these substances has varied to such an extreme, the current level of remission or lack of same could not be addressed with any degree of confidence. She also stated that no mood disorder diagnosis was being given because the Veteran's substance abuse, of some duration if his report during the August 2011 private psychiatric evaluation was accurate, could account for his extremes of mood. She stated that only in the complete absence (verified by laboratory testing) of substances over a period of some months, could the presence or absence of a primary mood disorder be ascertained. She did note, however, that psychological testing (MMPI-2) conducted as a portion of this examination did not indicate the presence of a mood or anxiety disorder at this time (which she previously noted was consistent with the Veteran's assertion that he is feeling significantly better at the present time). In September 2012, the Veteran's attorney submitted a brief in which he requested that the Veteran's claim be remanded again because the examiner's discussion regarding substance abuse causing the Veteran's mood swings is only speculative (stating that substance abuse "could" be the cause) and as such is not valid for rating purposes citing Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (speculative, general, or inconclusive medical opinions have little probative value). He also indicated that the Veteran is willing to undergo laboratory testing over a period of months to verify that he is not abusing any substances, and this would remove the bar the examiner said was preventing her from ascertaining whether or not a primary mood disorder is present. The Board agrees that the March 2012 VA examination is not adequate for rating purposes. In Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court of Appeals for Veterans Claims (Court) stated that the agency of original jurisdiction (AOJ) should ensure that any additional evidentiary development suggested by an examiner be undertaken so that a definite opinion can be obtained. Id. at 389. The Board acknowledges that this statement was made in relation to opinions in which an examiner states that an opinion cannot be rendered without resorting to speculation. Nevertheless, in this case, the examiner has essentially said that she cannot render a diagnosis of a mood disorder without drug testing being conducted, which the Veteran has agreed to undergo. Thus, pursuant to Jones, the Board finds that all efforts should be undertaken by the AOJ to conduct the required drug testing and then to have the Veteran reexamined, preferably by the same examiner who conducted the March 2012 VA examination. Furthermore, the Board notes that the Veteran's claim appears to rest on whether he has a personality disorder, which was diagnosed at the time of his discharge from the service and to which the April 2011 VA examiner related the Veteran's occupational and social impairments although he did not conduct any psychological testing to confirm the presence of a personality disorder. Furthermore, although the March 2012 VA examiner conducted an MMPI-2, she did not comment on whether the results of this test demonstrated the presence of a personality disorder and her diagnosis of personality disorder, not otherwise specified, was by history. Consequently, since the question of whether the Veteran has a current acquired psychiatric disorder appears to be contingent on the presence of a personality disorder, the Board finds that full psychological testing should be conducted to determine the exact nature and extent of any present personality disorder the Veteran may have. In addition, the Board notes that, at the March 2012 VA examination, the Veteran reported ongoing treatment at the private mental health center from which he provided records for August and September of 2011. The Board finds any additional records from that facility may also be highly relevant as to the Veteran's current psychiatric status and should be sought on remand. Finally, as it appears the Veteran receives treatment at the VA Medical Center in Memphis, Tennessee, and the last VA treatment record in the claims file is from April 2011, the Veteran's current VA treatment records should be associated with his claims file. Accordingly, the case is REMANDED for the following action: 1. Associate with the Veteran's claims file VA treatment records from the VA Medical Center in Memphis, Tennessee from May 2011 to the present. 2. Contact the Veteran and ask him to complete a release form authorizing VA to obtain his treatment records of the private mental health center he has been receiving mental health treatment at since August 2011. The Veteran should be advised that, in lieu of submitting a completed release form, he can submit these private medical treatment records to VA himself. If the Veteran provides a completed release form, then the medical records identified should be requested. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. The Veteran and his representative should be notified of unsuccessful efforts in this regard and afforded an opportunity to submit the identified records. 3. Thereafter, contact the VA examiner who conducted the March 2012 VA mental disorders examination (or, if not available, any other examiner with the appropriate expertise) and ask her (him) to specify the duration (how many months) and frequency (how many times) of any drug testing the Veteran would need to undergo to ensure the complete absence of substances in order for it to be ascertainable whether the Veteran has a primary mood disorder. Thereafter, contact the VA Medical Center in Memphis, Tennessee, and have it schedule the Veteran for the indicated drug testing. If such testing cannot be accomplished for any reason, an explanation should be provided. 4. Once the above development has been completed and the results of the requested drug testing have been associated with the claims file, schedule the Veteran for a VA mental disorders examination with the same examiner who conducted the March 2012 VA examination, if available. Prior to the examination, appropriate psychological testing should be conducted to determine the exact nature and extent of any personality disorder the Veteran may have. After reviewing the claims file (especially the results of any drug testing conducted and any additional mental health treatment records) and examining the Veteran, the examiner should render diagnoses of both Axis I and Axis II disorders currently present. If the Veteran is not shown to have a current Axis I diagnosis other than alcohol and cocaine abuse, fully explain the basis for that conclusion. In doing so, please address whether an Axis I disorder other than alcohol or cocaine abuse was present at any time since the Veteran filed his claim in June 2007, especially given the private medical evidence showing a diagnosis of major depressive disorder (see October 2009 private medical opinion), and either bipolar disorder or mood disorder, not otherwise specified (see August and September 2011private treatment records). If an Axis I psychiatric disorder other than alcohol and cocaine abuse is found to presently exist or to have existed at any time since the Veteran filed his claim in June 2007, please address the following questions: (a) Is it at least as likely as not (i.e., at least a 50 percent probability) that each current Axis I disorder identified (other than alcohol and cocaine abuse) was present in service, or is in any way related to service? (b) If any current Axis I disorder (other than alcohol and cocaine abuse) was present in service, is there clear and unmistakable evidence that such disorder existed prior to the Veteran's entry into active service? If so, is there clear and unmistakable evidence that this preexisting Axis I disorder was not aggravated (i.e., did not undergo a permanent increase in severity of the underlying disorder) beyond its natural progression during service? [In answering this question, the examiner is hereby informed that "aggravation" of a preexisting disability refers to an identifiable, incremental, permanent worsening of the underlying condition, as contrasted with temporary or intermittent flare-ups of symptoms.] In rendering the opinion, the psychiatrist should explain why any symptoms and findings noted in service do or do not reflect permanent worsening of the pre-existing disability (as opposed to being only a temporary exacerbation of symptoms). 5. Thereafter, the Veteran's claim should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. 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). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).