Citation Nr: 1320581 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 11-02 771A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, major depressive disorder, mood disorder, and dysthymic disorder. REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Navy from August 1978 to June 1984 and August 1987 to March 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim is not limited to the diagnosis identified by the Veteran. In this case, the Veteran has filed a claim for bipolar disorder but the record shows other psychiatric diagnoses. As a result, the issue on appeal has been re-characterized on the title page. 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 his psychiatric disorder was caused by his active military service. Further development of the evidence is necessary prior to an adjudication of the claim. Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the Veteran's own The Board observes that organic disease and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. Additionally, an injury or disease incurred during active military service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol by the person on whose service benefits are claimed. Alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 C.F.R. § 3.301(c)(d) (2012). An April 1988 service treatment record shows that the Veteran was diagnosed with alcohol dependence. An August 1988 service treatment record shows that the Veteran was referred to the psychology clinic with a provisional diagnosis of depression with suicidal ideation associated with heavy alcohol consumption. The psychologist diagnosed alcohol dependence and adjustment disorder with depressed mood. Post service VA medical treatment records show that the Veteran was treated for and diagnosed with alcohol dependence, bipolar disorder, major depressive disorder, mood disorder, dysthymic disorder, and alcohol dependence in remission. The evidence of record shows that this case presents medical questions which cannot be answered by the Board. There is a question as to whether the Veteran's current diagnosis of an acquired psychiatric disorder, to include bipolar disorder, major depressive disorder, mood disorder, and dysthymic disorder, is related to service, particularly the in-service provisional diagnosis of depression with suicidal ideation associated with heavy alcohol consumption and/or the diagnoses of alcohol dependence and/or adjustment disorder with depressed mood. Additionally, there is a question as to whether the Veteran's in-service psychiatric complaints/diagnoses are considered organic diseases which are secondary results from the chronic use of alcohol as a beverage and are thus not considered willful misconduct. Lastly, there is a question as to whether any psychiatric disability noted in service was a result of the abuse of alcohol. Given the competent evidence of current psychiatric disorders, and the competent evidence that such disorders may be related to service, the Board finds that a VA examination with medical nexus opinion is required to determine whether any current psychiatric disorder is causally related to service, and is not related to abuse of alcohol. Additionally, the record reflects the Veteran seeks regular VA treatment at the Nashville VA Medical Center. The most recent treatment records from this facility are from December 2009. As records of such treatment may be pertinent to the Veteran's claim, they must be secured on remand. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his acquired psychiatric disorder, to include bipolar disorder, major depressive disorder, mood disorder, and dysthymic disorder that are not already of record. Take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment, to include treatment records from the Nashville VA Medical Center dated since December 2009, and associate them with the claims file. The RO must make at least two requests to any custodian of private records in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records. Any negative response should be in writing and associated with the claims file. 2. After associating all outstanding records with the claims folder, schedule the Veteran for an appropriate examination to determine the nature and etiology of his acquired psychiatric disorder, to include bipolar disorder, major depressive disorder, mood disorder, and dysthymic disorder. The claims folder must be made available to the examiner. The examiner should note in the examination report that the claims folder, including service treatment records, has been reviewed. 3. The examiner is asked to provide an opinion as to whether it is least as likely as not (at least a 50-50 probability) that the Veteran's current acquired psychiatric disorder had its onset in service or is otherwise related to active military service and is not secondary to alcohol abuse. Additionally, the examiner should state whether any psychiatric disorder in service is considered and organic disease or disability which is a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise. Moreover, for each current psychiatric disorder found in the record and diagnosed on examination, provide an opinion as to whether the disorder was secondary to alcohol abuse in service. The examiner should note that alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability or death of the user. The examiner should consider and discuss the Veteran's psychiatric diagnoses reflected in his service treatment records and VA medical records, as well as consider any lay statements and assertions made by the Veteran. A fully articulated medical rationale for all opinions expressed must be set forth in the examination report. If the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Then, readjudicate the appeal. If the benefit sought on appeal is not granted, the Veteran and his representative should be issued a supplemental statement of the case and provided an 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). _________________________________________________ K. OSBORNE 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).