Citation Nr: 1313152 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 09-11 221A ) 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, to include posttraumatic stress disorder (PTSD), anxiety disorder, and bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and a friend ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from May 1974 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which declined to reopen the Veteran's claim of service connection for an acquired psychiatric disorder. In June 2010, at a Travel Board hearing conducted at the RO, the Veteran testified before a Veterans Law Judge who is no longer employed by the Board. In July 2010, the Board reopened the claim and remanded for additional development. In August 2012, the Veteran testified at a second hearing before the undersigned Veterans Law Judge sitting in Washington, D.C. Both hearing transcripts are associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder based on the incurrence or aggravation of a personality disorder in service, the development of additional psychiatric disorders after service caused by events in service, or a diagnosis of posttraumatic stress disorder (PTSD) as a result of certain traumatic events in-service. Prior rating actions in July 1977, August 1982, November 1989, December 2005, and August 2007 denied the claim. In July 2010, the Board reopened and remanded the claim in part for a VA examination to address the claimed psychiatric disability and to address PTSD based on the Veteran's newly asserted in-service traumatic events. Service personnel records showed that the Veteran was assigned to a short tour of duty on a fleet oiler and on a tugboat at the Guantanamo Bay Naval Station. The Veteran reported that his duties aboard the oiler included entering and cleaning large fuel storage tanks. In a March 2012 letter, a fellow Sailor confirmed the Veteran's performance of these duties which are consistent with the nature and circumstances of his rating and ship assignment. The service personnel records also reflect a pattern of minor offenses, poor attitude, insubordination, recurrent venereal disease, false accusations, and a failure to put forth effort to improve his behavior. Service treatment records showed that the Veteran underwent detailed psychiatric examinations in July and December 1977 following incidents of misconduct and gestures such as drinking small quantities of lighter fluid and paint to seek attention. The Veteran received a general discharge under honorable conditions but on the basis of unfitness and not for medical reasons. However, such findings do not themselves preclude additional findings to support development of a psychiatric disorder in service or causally related to service. Post-service records also reflect findings of personality disorder and drug abuse in 1977 and various psychiatric disorders including paranoid schizophrenia, bipolar disorder, and manic depressive psychosis in the 1980s. The Veteran was afforded a VA psychiatric examination in April 2011. The examining psychologist also provided an addendum statement in December 2011. The examiner performed and reviewed specialized psychological testing and ultimately found that the Veteran met all the criteria for a PTSD diagnosis except that the Veteran's reported inspection of fuel tanks aboard ship in service was not a traumatic stressor and did not support a diagnosis of PTSD. However, the copy of the April 2011 and most detailed report available in the claims file is not complete as portions at the right side and bottom were cut off in the copying process. A complete copy is necessary for the Board's review. The Board in its July 2010 decision and remand also noted that to the extent the Veteran's claimed disorder may be characterized as a personality disorder, the disorder is considered a constitutional or developmental defect and not a disease or injury, and hence may not be service connected for VA benefits purposes. 38 C.F.R. § 3.303(c), 4.9 (2012); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, as the Board also then noted, the VA Office of General Counsel has held that service connection may be granted for a congenital disorder on the basis of in-service aggravation. See VAOPGCPREC 82- 90, 55 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985) which in essence held that a disease considered by medical authorities to be of congenital, familial (or hereditary) origin by its very nature preexist claimants' military service). In that regard, the General Counsel held that service connection for congenital, developmental or familial diseases may be granted if manifestations of the disease during service constitute aggravation of the condition. See also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514- 15 (1993). Upon remand examination, the examiner was to render an opinion as to whether the Veteran's diagnosed personality disorder was aggravated during his active duty service. In the examiner's December 2011 addendum, she noted that the Veteran was of the age in service when personality disorders generally manifested but that it was "unclear based on available evidence" whether the Veteran's personality disorder was aggravated in service. Although the examiner provided a competent and credible opinion, the Board will seek a second opinion because of the substantial records of examination by military mental health care providers. Further, the file contains statements by a private physician who treated the Veteran before and after service and offered observations regarding changing behavior. The Board requests that a different examiner perform another detailed review of the record and address the question of in-service aggravation of a personality disorder beyond the normal progression of a developmental disorder. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an opportunity to submit additional evidence or argument in support of his claim. 2. With the Veteran's authorization and assistance, as appropriate, obtain and associated with the claims file any as-yet-unobtained records of VA or private treatment or evaluation for psychiatric conditions. 3. Obtain a complete, readable copy of the April 2011 VA psychiatric examination and associate the record with the claims file. 4. Thereafter, provide the claims file to a psychiatrist or doctoral level psychologist other than the examiner who conducted the April 2011 VA examination, to address the nature and etiology of each current psychiatric disorder. A copy of this Remand must be made available to the examiner prior to the examination and must be reviewed by the examiner in connection with the examination. a. For purposes of the review and opinion, the Veteran's reported circumstances of cleaning the inside of fuel containers aboard the fleet oiler USS Kalamazoo from October 1974 to July 1975 should be accepted. Inform the new examiner that a second opinion is requested as a VA examiner in a December 2011 addendum report was unable to determine whether it was at least as likely as not that any pre-service personality disorder was aggravated during service. b. The examiner is advised that, to the extent deemed relevant and credible, lay statements may be used to support a diagnosis or an assessment of etiology as related to service. If the examiner judges questions concerning the Veteran's credibility to be at issue, the examiner should explicitly note any such questions (if any are present), either as raised within the record or based on the Veteran's assertions upon examination, in combination with examination findings. Issues of credibility, validity of psychological testing, and concurrence or disagreement with previous diagnoses and medical opinions addressing the Veteran's disabilities should be discussed in the examination report, as appropriate. c. The examiner should seek to differentiate symptoms attributable to different identified mental or other conditions, and to avoid attributing symptoms to one disability which are best attributed to another, based on the examiner's medical expertise and careful review of all the evidence presented. Thus, for example, disability attributable to a personality disorder should be differentiated from any attributable to a psychiatric disorder, if such distinctions can be made based on the evidence presented. The examiner should express his or her own medical diagnoses and opinions and provide an explanation with supportive reasoning and factual bases for these diagnoses and opinions. d. In view of the records of psychiatric examination in service in July and December 1977 and the post-service private and VA treatment records in the 1980s, the examiner should provide an opinion whether it is at least as likely as not (i.e., at least a 50 percent probability) that any personality disorder was aggravated (permanently increased in severity) beyond its normal progression during service 5. Thereafter, readjudicate the claim for service connection for an acquired psychiatric disorder. If any benefit sought on appeal the subject of this remand is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a Supplemental Statement of the Case and afford an appropriate opportunity to respond. 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). ____________________________ MARJORIE A. AUER 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).