Citation Nr: 1325918 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-13 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The issue of service connection for a right hand injury has been raised by the record in April 2010, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Veteran served on active duty from April 1979 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In Clemons v. Shinseki, 23 Vet. App. 1 (2009) the Court held that, when the Veteran specifically requests service connection for PTSD, but the medical record includes other psychiatric diagnoses, the claim may not be narrowly construed as only a PTSD claim, and should be considered as a claim for a psychiatric disorder. In light of the holding in Clemons, and the fact that the Veteran has a history of variously diagnosed psychiatric disorders, the issue has been recharacterized as stated on the title page. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Veteran and her attorney contend that the March 2010 VA examiner's diagnoses of intermittent explosive disorder and a personality disorder are inconsistent with her multiple and longstanding diagnoses of a variously diagnosed psychiatric disorder, to include bipolar disorder and depression. Under the duty to assist another VA psychiatric examination is necessary to reconcile the various psychiatric diagnoses of record and to determine whether there was a disability resulting from a mental disorder that was superimposed upon the Veteran's personality disorder during service. On the March 2010 VA examination, the examiner concluded that the Veteran's psychiatric symptoms would preclude unemployability. However, as the issue of entitlement to TDIU is dependent upon VA's determination as to the Veteran's entitlement to service connection for a psychiatric disorder, the Board finds that both claims are inextricably intertwined and a Board decision on the claim for entitlement to TDIU at this time would be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with her assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. With the Veteran's assistance obtain copies of any pertinent records and add them to the claims file. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Request the Veteran's complete personnel file from the National Personnel Records Center and any other appropriate sources. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. After the development listed above has been completed, schedule the Veteran for a VA psychiatric examination to determine the etiology of any current psychiatric disorder. The examiner must do the following: a.) After reviewing the claims folder and examining the Veteran, the examiner should reconcile the Veteran's extensive history of various diagnoses of a psychiatric disorder, to include schizoaffective disorder, personality disorder, bipolar disorder, mood disorder, psychosis, major depression, and posttraumatic stress disorder (PTSD)(See VA medical records, private medical records, and records from the Social Security Administration, dated from 1990s to 2010). The examiner must address the May 2010 VA examination whereby the May 2010 examiner opined that the Veteran's problems stem from her substance dependency and personality disorder, leading to intermittent explosive behavior. The May 2010 examiner noted that her personality disorder preexisted service and provided diagnoses of intermittent explosive disorder, polysubstance abuse, paranoid personality disorder, antisocial personality disorder, and characteristics associated with borderline personality disorder. This examiner concluded that a nexus could not be formed between the Veteran's military career and her current symptoms and that her psychiatric treatment during service was due to her personality disorder. b.) For each psychiatric disorder that is diagnosed (other than a personality disorder), the examiner must offer an opinion, consistent with sound medical principles and in consideration of the Veteran's specific contentions, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disorder is related to service. The examiner should specifically rule in or out the private diagnoses of bipolar, major depression and schizoaffective disorder. c.) The examiner must also comment on whether there was a disability resulting from a mental disorder that was superimposed upon a personality disorder during service. In rendering all the opinions requested above, the examiner must address the following service treatment records. In January 1982 the Veteran was hospitalized for an Aminophylline overdose and on the day of discharge intentionally overdosed on Aspirin and was readmitted with a diagnosis of adjustment disorder. During a January 1982 psychiatric evaluation, the examiner noted that the Veteran felt harassed by her unit commander. Upon separation from service, a diagnosis of depressive mood was documented on the February 1982 examination. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. The examiner is asked to provide a rationale for the opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. 4. After completing the requested actions, and any additional notification and development deemed warranted, readjudicate the Veteran's claims of service connection for a psychiatric disorder and entitlement to TDIU. If the decision with respect to any of the claims remains adverse to the Veteran, she and her attorney should be furnished a Supplemental Statement of the Case, and afforded an appropriate period of time within which to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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).