Citation Nr: 1320172 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-50 694 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder. ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from December 1992 to April 1994. The Veteran received a discharge under conditions other than honorable for this period of service; however, this period of service has been determined by VA to have been honorable for VA purposes. See June 2009 VA Administrative Decision. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision by the RO in North Little Rock, Arkansas that denied service connection for bipolar disorder. The Board previously remanded this case in May 2011 and July 2012 for additional development. The case was subsequently returned to the Board. As noted on the title page, the Board has recharacterized the issue as entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding 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). 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 Regrettably, additional development is required prior to appellate review of the appeal for entitlement to service connection for an acquired psychiatric disorder. A United States Court of Appeals for Veterans Claims (Court) or Board remand confers upon the appellant the right to compliance with that order. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). In July 2012, the Board remanded the appeal to the RO via the AMC for additional development. Some development was completed, and the case was subsequently returned to the Board. Unfortunately, there was not adequate compliance with the remand directives, so another remand is required. Id. Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012). For purposes of establishing service connection under 38 U.S.C.A. § 1110, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2012). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). In its July 2012 remand, the Board directed the RO/AMC to arrange for a VA examination to obtain a medical opinion as to whether the Veteran has a current acquired psychiatric disorder, to include bipolar disorder, which preexisted his active service and was aggravated (permanently worsened beyond the normal progress of the disorder) by his active service or which is otherwise related to his active service. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Waters v. Shinseki, 601 F.3d 1274, 1276 (2010). While this case was on remand, the AMC arranged for a VA examination, and a VA compensation and pension examination was scheduled on August 23, 2012. The Veteran did not report for this VA examination, as noted in a January 2013 supplemental statement of the case. However, for the reasons discussed below, the Board finds that the August 2012 examination notification letter was mailed to the Veteran at an incorrect address, and thus the Veteran was not properly notified of his scheduled examination. A review of the claims file and the Veteran's electronic Virtual VA folder shows that an April 2012 supplemental statement of the case, the August 2012 VA examination notice, and a January 2013 supplemental statement of the case were all mailed to the same address, and both of the supplemental statements of the case were returned to VA by the post office as undeliverable. An October 2012 report of contact reflects that a VA employee was unsuccessful in attempting to telephone the Veteran. The Veteran's Virtual VA folder contains a VA Form 21-686c (Declaration of Status of Dependents), which is signed and dated in April 2012 by the Veteran, and includes a new mailing address. An October 2012 Report of Contact references this address. In December 2012, other VA correspondence was mailed to the Veteran at a third address, and it does not appear that this correspondence was returned as undeliverable by the post office. The remailed (in March 2013) supplemental statement of the case was sent to this address. The Board concludes that the Veteran did not receive notice of his scheduled VA compensation examination, that another attempt should be made to schedule him for a VA examination, and that a remand is required as the remand actions were not completed. Stegall, supra. On remand, the AMC should ensure that the examination notice is mailed to the Veteran at his most recent address of record. The Veteran is hereby advised that failure to report for this VA examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. Moreover, he is advised that it is his responsibility to keep VA apprised of his current mailing address. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not always a one-way street and if a Veteran desires help with his claim he must cooperate with VA's efforts to assist him). Any additional pertinent VA or private medical treatment records must be obtained, as well. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive, even if not actual, possession of the agency and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all additional records of any relevant VA or private treatment since service that are not already on file. If any identified records cannot be obtained, this fact must be documented in the claims file and the Veteran appropriately notified in accordance with 38 C.F.R. § 3.159(e). 2. The RO/AMC should then schedule the Veteran for a VA psychiatric examination by an appropriate specialist to determine the current nature and etiology of any psychiatric disorder found to be present; and, if so, whether such disability existed prior to the Veteran's active service and was permanently aggravated by the Veteran's military service, i.e. considering the service treatment reports, the service personnel records, the private medical records and the lay statements by the Veteran and his mother. The AMC and the VA Medical Center (VAMC) should ensure that the notice of the scheduled VA examination is mailed to the Veteran at his most recent address of record. The claims file (including the July 2012 remand and this current remand) must be provided to and reviewed by the examiner. The psychiatric examination is to include a review of the Veteran's history and current complaints, as well as a comprehensive mental status evaluation and any tests deemed as necessary. Please note: The Veteran and his mother are competent to report lay observable events and symptoms; i.e. he is competent to attest to any reported symptoms he experienced in service or since that time and she is competent to report observing symptoms of a bad temper and not getting along with others since childhood. The examiner is asked to offer an opinion addressing the following questions: (a) Please identify with specificity any evidence that supports a finding that it was obvious or manifest (clear and unmistakable) that a psychiatric disorder preexisted service. The examiner is advised that the determination regarding inception should not be based solely on the Veteran's reported history, but should also include consideration of the clinical records and the known developmental characteristics of any diagnosed psychiatric disorder. (b) Please indicate whether any preexisting psychiatric disorder obviously or manifestly (clearly and unmistakably) was not permanently aggravated in service (i.e., worsened in service to a permanent degree beyond that which would be due to the natural progression of the disorder). If a personality disorder is also diagnosed, the examiner is requested to discuss whether there is any evidence of a superimposed acquired psychiatric condition on that personality disorder in service that resulted in a current acquired psychiatric disability. (c) If the examiner does not find obvious or manifest evidence that any currently diagnosed psychiatric disability preexisted service and was not aggravated in service, he/she is requested to provide an opinion as to whether it is at least as likely as not that the Veteran currently has an acquired psychiatric disorder that is related to active military service or events therein. In providing the medical opinions above, the examiner is asked to discuss the Veteran's lay statements, his mother's lay statement and the medical evidence of record, including the service treatment reports and the private medical records. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The term "aggravation" of a preexisting disability refers to an identifiable permanent worsening of the underlying condition, as contrasted with temporary or intermittent flare-ups of symptomatology. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. The Veteran is advised that failure to report for this VA examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. 3. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 4. After the requested development has been completed, the AMC/RO should readjudicate the merits of the Veteran's claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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 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). _________________________________________________ S. L. Kennedy 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).