Citation Nr: 1306368 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 12-14 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Matthew Hill, Esquire WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service from November 1974 to June 1976. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in which the RO denied a claim to reopen entitlement to service connection for an anxiety disorder because new and material evidence was not submitted. In a March 2010 rating decision, the RO continued its denial to reopen the Veteran's claim of entitlement to service connection for an anxiety disorder and bipolar disorder, because new and material evidence was not submitted. Subsequent to the January 2004 last final rating decision in which the RO denied the Veteran's claim of entitlement to service connection for an anxiety disorder, existing service department records that were not previously associated with the Veteran's claim were associated with the record. Thus, VA will reconsider the claim on a de novo basis and without regard to finality. 38 C.F.R. § 3.156(c) (2012). The Veteran provided testimony at a December 2012 hearing before the undersigned. A transcript of the proceeding is associated with the claims folder. Given the nature of the evidence, the Board has characterized the issue as noted on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Veteran contends that he currently suffers from several psychiatric disorders, to include, bipolar disorder, which he sustained and was treated for during service. See December 2012 hearing transcript. He also contends that a VA psychiatrist recommended discharge from service due to his mental disorders, and in fact, he was discharged early from service. Furthermore, the Veteran contends that his mental disorder has continued since discharge from service, as evidenced by his continued treatment, reported history, and current diagnoses. The Veteran's September 1974 induction physical examination report was negative for complaints, treatment, or diagnosis of a psychiatric disorder. Service treatment records reveal that in August 1975, the Veteran sought treatment for his behavior, namely, his temper. In December 1975, the Veteran underwent a psychiatric evaluation, pursuant to a disciplinary action, as he struck a superior officer in the face in October 1975; the diagnosis was severe passive-aggressive personality disorder with explosive tendencies. A May1976 record notes a diagnosis of explosive personality disorder. A June 1976 service personnel record indicates that the Veteran was recommended for discharge from service because of character and behavior disorders. The June 1976 separation physical examination report was negative for complaints, treatment, or diagnosis of a psychiatric disorder. Following separation from active service, the Veteran's VA outpatient treatment records show several diagnoses of bipolar disorder, mood disorder, and anxiety disorder. See VA outpatient treatment records dated in May 2003 through May 2009. In November 2003, the Veteran underwent a VA examination during which the examiner diagnosed anxiety disorder not otherwise specified (NOS), mood disorder NOS, and opioid dependence (in remission since January 2003 as per the Veteran). Upon review of the Veteran's claims file, the examiner indicated that the Veteran's anxiety and mood disorders were most likely substance induced disorders. The examiner further opined that the Veteran did not have a diagnosis of schizophrenia or bipolar disorder. In a March 2010 letter, J.P., Psy.D., the Veteran's VA healthcare provider, submitted a letter indicating that he had treated the Veteran for bipolar disorder type II, for some time. J.P. reported that the Veteran was originally diagnosed with schizophrenia during service, after he suffered a psychotic break, and noted that the records of hospitalization and treatment were not in dispute. Upon treating the Veteran and review of the claims file, J.P. opined that the Veteran was misdiagnosed while in service; specifically, the Veteran suffered a psychotic break, but it was associated with bipolar disorder type II and substance abuse. J.P. further stated that given the Zeitgeist of the time, many veterans with bipolar disorder type II, or PTSD, were misdiagnosed as schizophrenic. J.P. reported that it had been a struggle for such veterans to get VA to acknowledge their misdiagnoses. J.P. concluded that such veterans, to include the Veteran, were unfairly penalized for DSM diagnostic criteria evolution and advancements in diagnostic acuity. Given the two conflicting VA diagnoses and opinions, the Board finds that clarification is needed before the appeal may be adjudicated. The Veteran's current diagnosis is not sufficiently clear; the evidence indicates that he has bipolar disorder type II, and mood and anxiety disorders. It is further unclear whether the differing diagnoses of record indicate that the current disorders are distinguishable from the personality disorder with explosive tendencies noted in service. Thus, another VA medical examination and opinion are necessary to make a determination in this case. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Clemons, 23 Vet. App. at 5. In addition, in the aforementioned March 2010 letter, J.P. indicated that he reviewed the Veteran's service treatment records which demonstrate a diagnosis of schizophrenia; however, such records are not contained in the claims file, nor are they located on Virtual VA. Accordingly, any available service treatment records should be obtained on remand. 38 C.F.R. § 3.159(c). Finally, in his April 2010 notice of disagreement, the Veteran indicated that Social Security Administration (SSA) records which contain information regarding his current psychiatric disorder had not been considered by the RO or associated with the claims file. There is no indication of record that the RO attempted to obtain any records pertaining to the Veteran from SSA. The Veteran's records are potentially relevant and should be obtained from SSA. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the Veteran a letter explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding the claim on appeal, now characterized as service connection for an acquired psychiatric disorder. This letter must inform the Veteran about the information and evidence that is necessary to substantiate the claim, and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. 2. Obtain the Veteran's service treatment records for the Veteran's complete period of service. 3. Contact the Social Security Administration and obtain any administrative decisions and all medical records used in adjudicating the Veteran's award of disability benefits. Once obtained, all documents must be permanently associated with the claims folder. If these records are unobtainable, a negative reply must be noted in writing and associated with the claims folder, and the Veteran must be informed of this fact. 4. Thereafter, the Veteran should be afforded a VA psychiatric examination to address the nature and etiology of any psychiatric disorder that he may have. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file should be made available to and reviewed by the examiner in conjunction with the examination. All indicated evaluations, studies, and tests deemed to be necessary should be accomplished. Based on the claims file review, the Veteran's lay contentions, and the results of the examination, the examiner should render a multi-axial diagnosis. For each Axis I diagnosis, the examiner should provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the diagnosis is etiologically related to service. The examiner must discuss the significance of the in-service diagnosis of a personality disorder with explosive tendencies and whether that diagnosis represented a chronic disability that would have had residuals following separation from service, or whether it was instead an acute and transitory condition that would not have involved later post-service manifestations. All opinions and conclusions rendered by the examiner must be supported by a complete rationale, with consideration of the evidence of record and the Veteran's own lay contentions. If an opinion cannot be made without resort to mere speculation, this must also be fully explained. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 6. Thereafter, readjudicate the Veteran's claim, with application of all appropriate laws and regulations, including consideration of any additional information obtained as a result of this remand. If the decision with respect to the claim remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. 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 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). _________________________________________________ L.M. BARNARD Acting 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).