Citation Nr: 1314448 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 10-14 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, and depressive disorder. REPRESENTATION Appellant represented by: Joon Sung, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1977 to June 1977 and from August 1979 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A hearing before a decision review officer was held in November 2009 and a videoconference hearing was held before the undersigned in July 2012; transcripts are of record. The Board recognizes that the Veteran has presented evidence of multiple psychiatric disorders, including PTSD, bipolar disorder, and depressive disorder. In a January 1987 rating decision, he was denied service connection for a nervous disorder. In a September 2008 rating decision, the RO considered the issues of PTSD, bipolar disorder, and depressive disorder on the merits. The Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, in the instant case, the Board finds that the Veteran's previous claim for a nervous condition is distinct from the current claim. For purposes of determining whether a new claim has been submitted under 38 U.S.C.A. § 7104(b), the "factual basis" of a service connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). In Clemons, the Court determined that the scope of Boggs and Ephraim is limited to claims to reopen. Specifically, the Court stated that Boggs, as well as Ephraim, relies upon a diagnosis to define the scope of a claim only retrospectively - after there has been a finding of fact based upon competent medical evidence. See Clemons, 23 Vet. App. at 8. In contexts of section 5108 and requests to reopen, this accomplishes a balancing effect that preserves the finality of agency decisions while not precluding Veterans from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied. Id. Therefore, the Board finds that the previous denial of a nervous condition is a separate claim and such is not on appeal before the Board, mainly because he is not claiming service connection for a nervous disorder, and the issue has thus been characterized as stated on the title page. The appeal is REMANDED to the RO in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he suffers from PTSD, bipolar disorder, and depression due to his time in service. He claimed that his conditions worsened after learning of the death of a fellow soldier and close friend and he has continued to suffer from such conditions since service. Service treatment records (STRs) include reports of medical history (dated May 1977 and August 1979) to include depression or excessive worry. The Board notes that the RO appears to base the denial of the Veteran's claims, in part, on the basis of a preexisting condition. See supplemental statement of the case, dated March 2011. However, a Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Thus, Veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes '[o]nly such conditions as are recorded in examination reports,' 38 C.F.R. § 3.304(b), and that '[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.' Id. at (b)(1). Here, entrance examination reports are silent for complaints, treatment, or diagnoses related to a mental condition. Thus, the Veteran is presumed sound. Additional STRs include an August 1979 record, which noted the Veteran presented crying and complaining of severe depression. The record further noted that the Veteran does not desire to remain in the service and will continue to fast until he is discharged. A September 1979 psychiatric evaluation diagnosed the Veteran with a personality disorder and recommended that he be administratively separated. With respect to psychiatric disabilities other than PTSD, the Board notes that service connection cannot be granted for the Veteran's diagnosed personality disorder because personality disorders, of themselves, are not compensable disabilities. 38 C.F.R. § 3.303 (c). The Veteran was hospitalized from July 1990 to August 1990. VA hospitalization records note an Axis I diagnosis of bipolar disorder, mixed type. In September 1990, the Veteran received a diagnosis of bipolar affective disorder with psychotic features. October 1991 Social Security Administration (SSA) records show a diagnosis of affective disorder marked by bipolar syndrome, major depression, and mild mental retardation. In a March 2007 VA treatment record, a PTSD screen was positive, however, the examiner noted that the Veteran did not meet Criterion A for a diagnosis of PTSD. April 2007 VA treatment records provide diagnoses of depression and bipolar disorder. The Veteran was afforded a VA examination in June 2007. He was diagnosed with bipolar I disorder and cannabis dependence. The examiner noted that the Veteran's description of the stressor event did not rise to the threshold requirements for a DSM-IV diagnosis. Subsequently, the Veteran's claimed stressor was verified by the U.S. Army and Joint Services Records Research Center (JSRRC). See January 2010 letter. A May 2008 VA mental residual functional capacity questionnaire noted an Axis I diagnosis of bipolar disorder and explained that the Veteran has a chronically depressed mood that does not respond to antidepressants. The Veteran was again afforded a VA examination in May 2010. The examiner diagnosed the Veteran with bipolar II disorder, depressed. The examiner stated that the Veteran's symptoms can be most parsimoniously explained by his bipolar disorder. He further stated that he concurs with the 2007 VA examiner's and PTSD clinic's evaluation that the Veteran's reported trauma does not meet DSM criterion A for PTSD without further explanation. As such, it is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (most of the probative value of a medical opinion comes from its reasoning). A December 2010 VA opinion regarding the reconciliation of multiple diagnoses was provided. This opinion noted that depression was not a separate diagnosis, but was a term associated with the bipolar disorder diagnosis. The examiner opined that the Veteran's bipolar disorder was not caused by or a result of the accident that occurred to his friend while in service, in part, because the Veteran reported a history of depression on induction and so the inservice event could not be the cause for his problems as his symptoms preceded the event in question. Here, the evidence of record reveals continued diagnoses of bipolar disorder and complaints of depression; however, there is no opinion addressing the relationship between the depression noted in service and his current psychiatric diagnosis. The December 2010 opinion only appears to consider the etiology of the currently diagnosed bipolar disorder as related to the Veteran's stressor incident. Thus, another medical opinion is needed to determine if there is a causal connection between a current psychiatric disorder, to include bipolar disorder and depression, and service, including complaints of depression in service. Further, the Veteran testified that he had received VA treatment at Allen Park Medical Center from 1984 to 1989. Thus, the RO should attempt to obtain these records. Accordingly, the case is REMANDED for the following: 1. Obtain any and all outstanding VA treatment records, to include from Allen Park Medical Center dated from 1984 to 1989. Unavailability of such treatment records should be documented in the claims file. 2. Arrange for a medical opinion, with examination only if deemed necessary, with respect to the existence of PTSD and the etiology of any current psychiatric disability. The claims file must be made available to the opinion provider for review. Based on the review of the record (and examination only if deemed necessary), an opinion should be provided: a. Opine whether the Veteran meets the criteria for a diagnosis of PTSD. The rationale for the opinion should be thoroughly explained. The discussion should reflect consideration of the May 2010 VA examination report; the December 2010 VA opinion; and the August 2009 private psychological evaluation. b. As to each diagnosed psychiatric disability, opine whether it is at least as likely as not (i.e., 50 percent or greater probability) that each such disability entity is related to his service. The rationale for all opinions should be thoroughly explained. The discussion should reflect consideration of the Veteran's complaints of depression in service in 1979; his 1990 diagnosis of and treatment for bipolar disorder; the May 2010 VA examination report; the December 2010 VA opinion; and the August 2009 private psychological evaluation. 3. Thereafter, the RO should readjudicate the Veteran's claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. The appellant 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 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). _________________________________________________ M.C. Graham 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).