Citation Nr: 1324109 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 07-01 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a chronic psychiatric disorder to include post-traumatic stress disorder (PTSD), major depression, panic disorder with agoraphobia, narcissistic personality disorder, personality disorder NOS, bipolar disorder type I with psychotic features, substance abuse, and schizoaffective disorder, bipolar type. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The appellant is a Veteran served on active duty from July 1983 to May 1987. The Veteran subsequently served in the National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. In January 2010, May 2011, and December 2012, the Board remanded this claim for further development. It now returns for appellate review. 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 Although the Board sincerely regrets the additional delay that will result from this remand, it is necessary to ensure there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran is claiming that he has a psychiatric disorder that had its onset during service. In the December 2012 remand, the Board requested that an opinion as to whether schizoaffective disorder had its clinical onset during service or is related to any in-service disease, event, or injury, or was manifest in the initial post-service year after the Veteran was separated from active duty in May 1987. The Board also requested that the examiner consider whether the Veteran had a preexisting psychiatric disorder prior to his National Guard service which post-dated May 1987. While the VA psychologist commented on schizoaffective disorder and PTSD, since service, he has also received several additional diagnoses including major depression, panic disorder with agoraphobia, narcissistic personality disorder, personality disorder NOS, bipolar disorder type I with psychotic features, and substance abuse. The VA examiner needs to reconcile the various psychiatric diagnoses. As far as personality disorders, such "defects" are not "diseases" or "injuries" within the meaning of applicable legislation for VA disability compensation purposes and, therefore, cannot be service connected. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. However, § 4.127 indicates that, as provided in 38 C.F.R. § 3.310(a), which concerns secondary service connection, disability resulting from a mental disorder that is superimposed upon mental retardation or a personality disorder may be service connected. See also VAOPGCPREC 82-90 (July 18, 1990), 55 Fed Reg. 45,711; Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Quirin v. Shinseki, 22 Vet. App. 390 (2009); and Winn v. Brown, 8 Vet. App. 510, 516 (1996). Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). Congenital or developmental "defects" such as a personality disorder and mental deficiency automatically rebut the presumption of soundness and therefore are considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9. Therefore additional commentary is needed. Once VA undertakes the effort to provide an examination for 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. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). A July 2010 VA clinical record indicates that the Veteran is receiving Supplemental Security Income (SSI) from the Social Security Administration (SSA). These records concerning his entitlement to SSA benefits should be obtained before deciding this appeal because they are potentially also relevant to his VA claim for psychiatric disability purportedly related to his military service. 38 C.F.R. § 3.159(c)(2). See also Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Clarkson v. Brown, 4 Vet. App. 565, 567-68 (1993); and Marciniak v. Brown, 10 Vet. App. 198, 204 (1997). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Ask the Veteran to update the list of the doctors and mental health care facilities that have treated him for his psychiatric disorders, regardless of the specific diagnosis. If the attempts to obtain these additional records are unsuccessful, and it is determined that further attempts would be futile, document this in the file and notify the Veteran of this in accordance with 38 C.F.R. § 3.159(c)(1), (c)(2), (c)(3), and (e)(1). 2. Also obtain the Veteran's SSA/SSI records, including any medical records considered in determining his potential entitlement to benefits from that agency. 3. After obtaining these records, schedule VA compensation examination identify and, if possible, reconcile all psychiatric diagnoses to date. Additionally, comment on the likelihood (very likely, as likely as not, or unlikely) that any current psychiatric disorder was incurred in or aggravated by 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 regards to the personality disorder, determine whether it clearly and unmistakably preexisted the Veteran's service, and if so, the likelihood (very likely, as likely as not, or unlikely) that any of the several additional diagnoses since service are indication of disability superimposed upon the personality disorder and, in turn, the result of his military service or, instead, more likely the result of other unrelated factors. 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 Veteran is hereby advised that failure to report for this scheduled VA examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. 4. Then readjudicate the claim in light of the additional evidence. If the claim is not granted to the Veteran's satisfaction, send him and his 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 the 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). _________________________________________________ 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).