Citation Nr: 1317732 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-16 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for narcolepsy. 3. Entitlement to service connection for temporal lobe seizures. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served from May 1969 to June 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2009, the Veteran participated in an informal conference, a report of which is associated with the claims file. He thereafter requested a formal RO hearing in May 2009 but withdrew this hearing request in August 2009. A review of the Veteran's Virtual VA claims folder indicates that it contains only evidence that is duplicative of that which is also contained in the paper claims file. 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 Board finds that additional development is necessary prior to final adjudication of the claims on appeal. First, the Board notes that the Veteran has indicated on two occasions that he is in receipt of Social Security Administration (SSA) disability benefits based upon his seizure disorder. Where VA has notice that the Veteran is receiving SSA disability benefits, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents on which the decision was based. Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010). Thus, the records relating to the SSA disability determination should be obtained. Under the VCAA, VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay statements can satisfy each of these elements in certain circumstances, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); McLendon, 20 Vet. App. at 83. Further, once VA affords the Veteran a VA examination, it has a duty to ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Psychiatric Disorder The service records show that the Veteran underwent psychiatric evaluation and was diagnosed as having severe passive-aggressive personality disorder and subsequently immature personality with passive-aggressive and passive-dependent traits in February and March 1970. He was then discharged based on unsuitability. Contemporary diagnoses include bipolar disorder, intermittent explosive disorder, and personality disorder. In July 2008, the Veteran underwent VA examination. The diagnoses were bipolar disorder by history, intermittent explosive disorder, and personality disorder. The examiner indicated that although the mental health problems were exacerbated in service, the problems predated service. In a December 2008 addendum, the VA examiner questioned the finding that the Veteran's psychiatric examination was normal at entry based upon evidence of pre-service antisocial proclivities. The examiner concluded that service was not the proximate cause of the personality disorder. As to whether bipolar disorder or intermittent explosive disorder was related to service, the examiner could not provide an opinion without resorting to speculation but did not provide a reason for that conclusion. The Board finds that the evidence is inadequate to finally decide this appeal. On remand, the RO needs to obtain an opinion as to whether any acquired psychiatric disability existed prior to service and whether it was aggravated in or due to service. The conclusion provided in the July 2008 VA addendum is inadequate because the examiner did not explain why she could not provide an opinion. Jones v. Shinseki, 23 Vet. App. 382 (2011). Narcolepsy The Board finds that the July 2008 VA examination afforded to the Veteran on this matter is inadequate because the examiner provided a rationale that is inconsistent with the evidence of record. Specifically, the examiner concluded that the episode of lethargy experienced by the Veteran in February 1970 was not due to narcolepsy, in part, because the Veteran was intoxicated at that time, which was the reason for his lethargy. However, the February 1970 service record shows that the Veteran's drug test for barbiturates was negative, and he denied consuming alcohol because he was not able to find it. On remand, an adequate opinion must be obtained on this matter, to include a rationale that is consistent with the record. Temporal Lobe Seizures The Veteran was not afforded a VA examination with an opinion provided on this issue. The July 2008 report contains a diagnosis but no opinion as to etiology. In a March 2009 opinion, the Veteran's private physician indicated that, based upon the Veteran's description of an event during service, it was possible that episode was a non-epileptic seizure and, therefore, connected to the current disorder. The provided opinion is not adequate because it only suggests a possible relationship. Therefore, the RO must provide the Veteran an opinion on this matter. Accordingly, the case is REMANDED for the following action: 1. Request from the SSA records relating to any disability determination made with regard to the Veteran, along with the supporting medical documentation. 2. Obtain an opinion as to whether any acquired psychiatric disorder was incurred in or aggravated by service. The provider should first offer an opinion as to whether the evidence clearly and unmistakable shows that an acquired psychiatric disability preexisted service. If the answer to this question is in the affirmative, the provider should offer an opinion as to whether the evidence clearly and unmistakably shows that the preexisting disability was not aggravated (i.e., worsened beyond its natural progression) by service. Then, the provider should clearly identify all current psychiatric disabilities. With respect to each diagnosed disability, the provider should indicate whether it is as least as likely as not (50 percent probability or more) that such disability is related to service. In offering the above opinions, the psychiatrist should specifically address the medical and lay evidence of in-service psychiatric symptoms, including the Veteran's reports of preservice behavior, including being kicked out of school for not being able to deal with the other students. The provider is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. A complete rationale should accompany each opinion provided. 3. Obtain an opinion as to whether narcolepsy is due to or related to service, including the February 1970 service record showing that the Veteran manifested lethargy but was easily aroused. The provider is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. A complete rationale should accompany each opinion provided. 4. Obtain an opinion as to whether the Veteran has a seizure disorder that is due to or related to service, including the February 1970 service record showing that the Veteran manifested lethargy but was easily aroused. The VA provider is asked to address the March 2009 opinion provided by the Veteran's private physician. The provider is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. A complete rationale should accompany each opinion provided. 5. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. 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). _________________________________________________ H. N. SCHWARTZ 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).