Citation Nr: 1310700 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 05-23 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include bipolar disorder. 2. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from October 1986 to April 1991. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from rating decision dated in January 2004 and November 2004 issued by the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Most recently, the Board remanded the Veteran's claims in July 2012 for a VA medical examination and opinion, and for the Veteran to submit an updated VA Form 21-8940, with respect to his claim for a total disability rating due to individual unemployability (TDIU). The Board ordered that an opinion be provided from a VA examiner regarding whether the Veteran's currently diagnosed psychiatric disorder pre-existed his military service and if so, whether any pre-existing psychiatric disorder underwent an untoward increase in severity during service. If any pre-existing disorder increased in service, the Board directed the examiner provide an opinion as to whether the increase was due to the natural progression of the disorder. For any currently diagnosed psychiatric disorder that did not pre-exist service, the examiner was also to provide an opinion as to whether the disorder was related to the Veteran's military service. The Board instructed the examiner to provide a complete rationale for all opinions provided. The Veteran was afforded a VA examination in August 2012, which provided a diagnosis of bipolar disorder. Following a clinical examination and review of the claims file, the examiner opined that the Veteran's bipolar disorder was "at least as likely as not" triggered or aggravated by his serious alcohol abuse problem while in the military, which continued for several years later until 1997. The examiner did not provide a rationale for this opinion, other than stating that the opinion was based on a review of the claims file. The examiner also did not address whether the Veteran's bipolar disorder pre-existed his military service or whether any pre-existing psychiatric disorder increased beyond natural progression while he was on active duty. Thus, the August 2012 opinion does not comply with the July 2012 remand directives. Additionally, the August 2012 opinion is inconclusive regarding whether Veteran's current bipolar disorder had its onset during or prior to his military service. Here, the Board recognizes that the August 2012 examiner opined that the Veteran's bipolar disorder was either triggered or aggravated by his in-service alcohol abuse. However, the Veteran claimed in a September 2009 statement that he hid his psychiatric symptoms through his alcoholism. It does not appear that the August 2012 opinion gives consideration to the Veteran's statement in this regard. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran's claim for TDIU benefits is intertwined with his claim for service connection for a psychiatric disorder. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Specifically, the outcome of the service connection claim may have bearing on whether the Veteran is entitled to a TDIU. T Accordingly, the case is remanded for the following action: 1. The RO shall obtain all outstanding VA records and private medical records identified by the Veteran as relevant to the claims on appeal. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure the same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing the evidence. The Veteran and his representative must be given an opportunity to respond. 2. Thereafter, the RO shall return the claims file to the VA examiner who performed the August 2012 examination and request a supplemental opinion with supporting rationale regarding the etiology of the Veteran's bipolar disorder. The examiner must review the claims file and all records on Virtual VA, as well as this remand, and must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records, if any, that are reviewed. Following the review of the evidence of record, the examiner must provide a complete medical opinion and rationale for the August 2012 opinion that the Veteran's bipolar disorder was either triggered or aggravated by his alcohol abuse while in the military. In so doing, the examiner must specifically discuss whether the Veteran's currently diagnosed bipolar disorder pre-existed his military service and if so, whether the disorder underwent an untoward increase in severity during the Veteran's service. If bipolar disorder was not present prior to service, the examiner must provide an opinion as to whether the disorder is otherwise related to the Veteran's military service. In providing the requested opinions, the examiner must discuss and consider the Veteran's competent lay statements regarding the onset of his psychiatric symptomatology. All opinions expressed must include a complete rationale. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would be speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 3. If the examiner that conducted the VA examination in August 2012 is unavailable to provide a supplemental opinion, the Veteran must be afforded an appropriate VA examination conducted by a VA examiner other than the VA examiner who provided the November 2008, April 2009, and February 2010 medical opinions. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Following a review of the evidence of record, the clinical examination, and with consideration of the Veteran's statements, the examiner must state whether any currently diagnosed psychiatric disorder pre-existed military service. If the current psychiatric disorder is found to have pre-existed military service, the examiner must then state whether such disorder underwent an untoward increase in severity while the Veteran was in the military service, and if so, was such an increase due to the natural progression of the disorder. If any psychiatric disorder currently diagnosed is found not to have pre-existed military service, the examiner must state whether the currently diagnosed psychiatric disorder is related to the Veteran's military service. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. Following completion of the above, the RO must review the addendum or examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, implement corrective procedures at once. 5. If an additional examination is necessary, the RO must notify the Veteran that it is his responsibility to report for the scheduled examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence and argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).