Citation Nr: 1304086 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 09-37 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a psychiatric disability, to include anxiety disorder with depression. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel INTRODUCTION The Veteran served on active duty from February 1980 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 RO decision, which denied a claim for service connection for anxiety disorder with depression (claimed as a mental condition). In September 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge at the St. Petersburg, Florida, RO. A transcript of that proceeding has been associated with the claims folder. In February 2012, the Board issued a decision remanding this claim for additional development. The appeal is once again being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Service personnel records are replete with reference to counseling of the Veteran by his superiors at Fort Carson beginning in February 1981 for various offenses related to attitude and appearance. These included being absent from duty, having deficiencies with his uniform inasmuch as his fatigues were soiled and dirty, his boots were unpolished, he was in need of a shave and haircut and his hat was extremely soiled. Other offenses included not showing respect for an officer after being told to get out of formation for his uniform deficiencies and hanging his eyeglasses off of his uniform despite being previously told not to have them on with his uniform. In April 1981, it was noted that he voiced negative comments about the army, his unit and his superiors. He voiced a can't do and won't do attitude about all aspects of his job and the directives given him. His performance had been poor and was considered a deterrent to others around him. He reportedly showed no initiative toward prop and rotor functions which was his specialty. It was recommended that he be sent back to his original duty section and not be afforded the opportunity to on the job train in any other maintenance platoon section. He failed to obey an order to check in with his platoon after some training. A June 1981 Report of Mental Status Evaluation indicates that the Veteran had been followed at Community Mental Health Activity since January 1980, pursuant to dealing with issues of maturity and impulse control. His behavior was normal, he was fully alert and oriented, his mood was unremarkable, thinking process was clear, thought content was normal and memory was good. It was noted that no psychiatric diagnosis was warranted, and that the service member was being cleared for any administrative action deemed proper by Command. Following the June 1981 aforementioned psychiatric report, a report of proposed separation reflects that the Veteran was to receive a general discharge under honorable conditions due to poor attitude, lack of motivation, lack of self-discipline, and failure to demonstrate promotion potential. He was thereafter separated in August 1981. The Board remanded this matter in February 2012 in part to afford the Veteran a VA psychiatric examination to determine whether the Veteran has a current psychiatric disability that is etiologically related to service. He was afforded such an examination in June 2012, by a psychologist who reviewed the claims folder and interviewed the Veteran. The psychiatric diagnosis included Axis I: Pain disorder associated with a general medical condition and psychological factors, depressive disorder, NOS, anxiety disorder, NOS, alcohol dependence was noted in sustained remission. There was no Axis II diagnosis. Axis III included multiple medical diagnoses, Axis IV noted psychosocial and environmental problems, and Axis V was GAF 50. A diagnosed traumatic brain injury was also noted. MMPI-2 showed significant social withdrawal, symptoms of depression, experiences of anxiety and worry, disturbing somatic experiences, a sense of alienation from others, feelings related to perceived mistreatment, and a quickness to anger. The examiner further noted that the Veteran demonstrated depressed mood, anxiety and suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. Following examination, the examiner noted that the service treatment records (STRs) contained the June 1981 mental health note showing no psychiatric diagnosis. He also noted the current diagnoses of anxiety and depressive disorders in the VA treatment records. He further noted that the Veteran currently meets DSM-IV-TR diagnostic criteria for Pain Disorder Associated with a General Medical Condition and Psychological Factors, Depressive Disorder NOS, Anxiety Disorder NOS, and Alcohol Dependence, in sustained partial remission. In his evaluation of the evidence, the psychologist observed: Unfortunately for this Veteran's claim, there are no documented in-service events that are likely to have caused the current psychiatric problems. Per his verbal report, the in-service precipitant was living in a barracks with 40 men; while this might be experienced as uncomfortable by some, it would not be expected to produce symptoms justifying a psychiatric disorder diagnosis. The Veteran's verbal report that he was seen for a year by mental health at Ft. Carson could not be confirmed by a review of his STR's. Other military records note a history of military infractions/disciplinary actions; the causes for these problems are unclear, and cannot be determined without resorting to speculation. In addition, there are post-military stressors capable of causing the present psychiatric problems, included (per his report) years of alcoholic drinking, and two serious closed head injuries with LOC (1990 & 2006), with ongoing and continuous physical pain related to surgeries necessitated by the 1990 injuries. Therefore, it is considered to be less likely than not (less than 50% likelihood) that the Veteran's currently diagnosed psychiatric disabilities had an onset in service, or were otherwise incurred in or aggravated by a disease or injury in service. In offering an opinion as to the likelihood of a relationship between the Veteran's current disabilities and service, the VA examiner specifically noted that the Veteran's report that he was seen for a year by mental health at Ft. Carson could not be confirmed by a review of his STR's. As noted, however, the June 1981 Report of Mental Status Evaluation indicates that the Veteran had been followed at Community Mental Health Activity since January 1980, pursuant to dealing with issues of maturity and impulse control. Given this inconsistency, the Board is concerned that the VA examiner's opinion was based, at least in part, on an incorrect factual premise. Consequently, the Board finds that this claim must be remanded so that an attempt could be made to locate any available records from the Community Mental Health Activity for treatment received between January 1980 and June 1981, and to obtain a clarifying opinion from the VA examiner. Accordingly, the case is REMANDED for the following action: 1. Take appropriate action to obtain any available records from the Community Mental Health Activity for treatment received between January 1980 and June 1981. If these records are found to be unavailable, this should be noted in the claims file. 2. If available, please return the claims file to the examiner who provided the June 2012 opinion. The examiner should be asked to reconcile his statement that Veteran's report that he was seen for a year by mental health at Ft. Carson could not be confirmed by a review of his STR's with the fact that the June 1981 Report of Mental Status Evaluation indicates that the Veteran had been followed at Community Mental Health Activity since January 1980, pursuant to dealing with issues of maturity and impulse control. In doing so, the examiner should once again offer an opinion as to whether it is at least as likely as not that any of the Veteran's currently diagnosed psychiatric disabilities had an onset in service, or were otherwise incurred in or aggravated by a disease or injury in service. If the examiner determines that a diagnosis of personality disorder is warranted, the examiner should offer an opinion as to whether any such disorder was subject to a superimposed injury during service or otherwise aggravated during service. If this examiner is unavailable, the claims folder should be provided to a different examiner for an opinion. 3. After completion of the foregoing, and after undertaking any additional development which it deems to be necessary, the RO should then readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, 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. 2012). _________________________________________________ MICHAEL LANE 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).