Citation Nr: 1323625 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 06-00 387A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1980 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision on behalf of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2008, the Veteran testified at a personal hearing before a Veterans Law Judge who is unavailable to participate in this decision. The Veteran was notified that another hearing would be provided upon request within 30 days by correspondence dated July 13, 2012. No response, however, was received. A copy of the transcript of the March 2008 hearing is of record. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (hereinafter "the Court") held that an initial claim of entitlement service connection for PTSD should also be read as including other psychiatric disorder diagnoses reasonably raised by the symptoms described and all information obtained in support of the claim. In September 2011, the Board denied the Veteran's claim for entitlement to service connection for PTSD and remanded the issue remaining on appeal for additional development. In September 2012, the Board remanded the case for additional evidentiary development. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As pointed out by the Veteran's representative, the Veteran's service treatment records contain clinical notes indicating that the Veteran received treatment at the Mental Health Clinic at the U.S. Air Force Base hospital at Homestead, Florida between December 1982 and April 1983. These records refer to depression; however, it is not clear if there are more detailed accounts of her treatment. Although the RO obtained service treatment records which include some Mental Health Clinic notations, it is unclear whether additional records are available. Mental health records are often held separate from the service treatment records folder. The M21 manual indicates that in-service mental health treatment records are separate from the general service treatment records and, therefore, must be requested separately. See VBA's Adjudication Procedure Manual, M21-1MR, III.iii.2.A.1. Because the Veteran, in her claim, asserts that her current mental disorder began during service, evidence of in-service mental health treatment is particularly important in this case. Under 38 C.F.R. § 3.159(c)(2), VA has a duty to assist the Veteran by obtaining records such as these, which are in the hands of a Federal department or agency. Thus, while the Board regrets the delay, a remand is again required. Moreover the record contains VA medical opinions regarding the etiology of the Veteran's psychiatric disorder, however, neither opinion refer to her in-service treatment. Further, in regard to the medical opinions of record, the medical examiners refer to her preservice history of alcohol use. It is not clear, but the opinions imply that the Veteran may have entered service with a pre-existing psychiatric condition. In this respect, the Board notes that every veteran who served in the active military, naval, or air service after December 31, 1946 is 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. 38 U.S.C.A. §§ 1111, 1137). Only those conditions recorded in examination reports can be considered as "noted" 38 C.F.R. § 3.304(b), and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. Id. § 3.304(b)(1). Determination of the existence of a pre-existing condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion (see Miller v. West, 11 Vet. App. 345, 348 (1998)), or a later medical opinion based upon statements made by the Veteran about the pre-service history of his/her condition. Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000). To rebut the presumption of soundness for conditions not noted at entrance into service, VA must show by both clear and unmistakable (obvious and manifest) evidence that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005); Wagner v. Principi¸ 379 F.3d 1089, 1096 (Fed. Cir. 2004). Temporary or intermittent flare-ups of a pre-existing injury or disease during service are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, worsened. See Hunt v. Derwinski, 1 Vet. App. 292 (1991). If the presumption of soundness is not rebutted, "the Veteran's claim is one for service connection." Wagner, 370 F.3d at 1096. That is to say, no deduction will be made for the degree of disability existing at the time of the Veteran's entry into service. Wagner, 370 F.3d at 1096; 38 C.F.R. § 3.322. In light of the foregoing, the Board finds that a new VA examination is needed to obtain a more detailed medical opinion regarding the etiology of the Veteran's psychiatric disorders, as well as an opinion as to whether any of the currently-diagnosed conditions pre-existed and were permanently aggravated by service, or were the result of some incident of service. Cf. Savage v. Shinseki, 24 Vet. App. 259 (2011) (holding that fulfillment of the duty to assist requires that VA seek clarification of private medical evidence or explain why such clarification is not needed). Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center and request any separately stored mental health clinic records during the Veteran's service, including but not limited to records from the Mental Health Clinic at the U.S. Air Force Base hospital at Homestead, Florida, dated between December 1982 and April 1983. 2. Thereafter, schedule the Veteran for a VA compensation examination for a medical opinion concerning the etiology of any psychiatric disorder other than PTSD. All diagnostic testing and evaluation needed to make these important determinations should be performed. It is imperative the designated examiner review the claims file, including a complete copy of this remand, for the pertinent medical and other history. The examiner should opine as to whether any psychiatric disorder (other than PTSD) clearly and unmistakably preexisted the Veteran's military service and, if it did, whether it also clearly and unmistakably was not aggravated during or by her service beyond its natural progression. If, instead, this two-part test is not met, then an opinion is needed concerning the likelihood (very likely, as likely as not, or unlikely) that any current psychiatric disorder (other than PTSD) is directly related or attributable to the Veteran's military service. The term "as likely as not" means at least 50 percent probability. It does not, however, mean merely within the realm of medical possibility, 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. In making these necessary determinations, the examiner must consider the Veteran's lay statements regarding having experienced relevant symptoms both prior to and while in service and on a continuous basis during the many years since. In addition, there are relevant service treatment records on file which show that the Veteran received mental health treatment during active duty. The examiner must discuss the medical rationale for the opinion, irrespective of whether it is favorable or unfavorable to the claim, if necessary citing to specific evidence in the file to support conclusions. The Veteran is hereby advised that failure to report for this scheduled examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. 3. Then readjudicate the claim in light of the additional evidence. If this claim is not granted to the Veteran's satisfaction, send her and her representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran 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. Parakkal 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).