Citation Nr: 1327693 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 11-09 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychological disorder, to include posttraumatic stress disorder (PTSD), major depression, anxiety, and schizoid personality. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1959 to February 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran filed a claim for service connection for Schizoid Personality (claimed as anxiety and depression), which was denied in an August 2009 rating decision by the RO. The Veteran then filed a claim for PTSD, which was denied in a June 2010 rating decision by the RO. In September 2010, the Decision Review Officer held a hearing with the Veteran and his representative to discuss the issues of both claims. While the Veteran's Form 9 and the Veteran's representative only allege the PTSD as the basis of this appeal, the Board notes that under Clemons v. Shinseki, 23 Vet. App. 1 (2009), the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Therefore, the Veteran's claim for service connection for Schizoid Personality (claimed as anxiety and depression) and his claim for service connection for PTSD have been incorporated into his current appeal. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 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 he developed a psychiatric disorder in service as a result of an incident involving falling overboard from a ship and an incident during which he was almost electrocuted. The Board finds that additional development is needed before a decision may be rendered. The Veteran entered the Navy in September 1959. According to his service treatment records, the Veteran was admitted to the U.S. Naval Hospital at Portsmouth, Virginia for psychiatric care in January 1963. He was originally diagnosed with Personality Disorder with Depression. His diagnosis was later changed to Schizoid Personality. One month later, in February 1963, the Veteran was discharged from the Navy. The August 2009 rating decision is based, in part, on a finding that the Veteran's psychological problems pre-dated service. However, the Board finds that further development is needed before that issue can be adjudicated. The 1963 Medical Board found the Veteran unsuitable for duty. The report references the Veteran's childhood and his apparent general "schizoid orientation" while growing up. The opinion seems to have been based on the general history the Veteran provided to his treating mental health care providers at the hospital. The report also mentions that for a year prior to his admission to the hospital, the Veteran suffered "intermittent epigastric discomfort" that resulted in depression and anxiety. The Veteran also had several family problems, including: (1) his mother's problems associated with "welfare"; (2) the separation of his parents; and (3) the senility of his father. The report also mentions problems the Veteran was having with his commanders. VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The RO requested a VA psychological examination and it was conducted in November 2010. The VA examiner diagnosed the Veteran with Major Depression and assessed a Global Assessment of Functioning Score of 65. The examiner noted that the examination was requested to (1) assess whether or not there was a preexisting psychological disorder the Veteran had before entering service, and (2) assess whether the Veteran's current diagnosis is associated with or due to his time in service. Unfortunately, these questions were not adequately answered for purposes of adjudicating this claim. Applicable law provides that every veteran shall be presumed in sound condition when entering service, except as to defects, infirmities, or disorders noted at the time of the Veteran's entrance examination, acceptance, and enrollment. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Here, there is no mention of any psychological issues on the Veteran's entrance exam. VA may rebut the presumption of soundness only by showing (1) that the condition clearly and unmistakably existed prior to service; and (2) that the condition clearly and unmistakably was not aggravated during service. Wagner v. Principi, 370 F. 3d 1089, 1092 (Fed. Cir. 2004). A preexisting disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. A VA medical opinion is necessary to determine the etiology of any currently diagnosed mental disorder, to include whether the Veteran has an acquired psychological disorder due to his period of service or if any preexisting psychological disorder was aggravated by the Veteran's period of active military service. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).Error! Not a valid embedded object. The Board also observes that the Veteran has been diagnosed with a personality disorder. The Board notes that generally, personality disorders, mental deficiency, mental retardation and other such "defects" are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012). However, evidence of additional disability resulting from a mental disorder that is superimposed upon and aggravates a congenital defect such as a personality disorder or mental deficiency during service may be service-connected. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012). See also VAOPGCPREC 82-90, 55 Fed Reg. 45,711 (July 18, 1990); Carpenter v. Brown , 8 Vet. App. 240, 245 (1995); and Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). An opinion is needed to address that possibility. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for psychiatric disorders since service. The RO should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. 2. The Veteran should be asked to provide any additional information and/or evidence that could be used to corroborate his claimed stressors in this case: his alleged fall overboard in the time period of November 1962 - December 1962 and the alleged electrical accident in the time period of June 1961 - August 1961. If additional information is received, the RO should undertake any appropriate development to verify such incidents. 3. Only upon completion of the above, schedule the Veteran for a psychiatric examination, by a psychiatrist or psychologist who has not previously treated the Veteran. The entire claims folder, to include a complete copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination. All indicated studies, tests, and evaluations, if any, should be performed as deemed necessary by the examiner. The results of any testing must be included in the examination report. The examiner shall respond to the following inquiries: a. The examiner should indicate all psychiatric disabilities currently shown, utilizing the DSM-IV. Specifically, the examiner must state whether the Veteran currently has PTSD; an anxiety disorder, major depression; and/or a personality disorder. b. If the record supports a diagnosis of PTSD, the examiner is asked to opine whether it is at least as likely as not that the Veteran has PTSD that is related to a confirmed stressor or any other incident of service. c. For any other diagnosed acquired psychiatric disorder(s), the examiner is asked to opine whether such disability was present during service. d. If a current psychiatric disorder is found to have been present during service, on the basis of the clinical records, can it be concluded as medically undebatable that the Veteran's psychological disorder preexisted his entry into active military service in September 1959? The examiner is asked to review and respond to the notations in the service treatment records and the Medical Board report that note the Veteran's history of mental health problems. e. If it is found as medically undebatable that a psychological disorder did clearly preexist service, can it also be concluded as medically undebatable that it was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease? f. If a psychological disorder is not found to have preexisted service, does the Veteran have PTSD, and if so, is such disorder a result of a traumatic incident in service? If a diagnosis of PTSD is made, the examiner should specify the stressor, or stressors, relied on in making the diagnosis. Finally, does the Veteran have a clinical diagnosis of any other psychological disorder as a result of military service? g. For any diagnosed personality disorder, the examiner is asked to opine whether there was a superimposed disease or injury in service resulting in a current acquired psychiatric disorder. The examiner is asked to reconcile any opinion with all evidence of record, to include the Veteran's report of psychiatric symptoms since service. If no opinion can be rendered without resorting to pure speculation, the examiner should explain why this is not possible. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. The report of examination must include the complete rationale for all opinions expressed. If the examiner finds he or she cannot provide a requested finding without resort to pure speculation, he or she must provide a complete rationale for any such opinion. They must indicate whether their inability to provide such an opinion is a result of such factors as: (i) an intractable lack of sufficient factual information, (ii) a lack of sufficient specialization or expertise on his or her part, or (iii) a lack of sufficient knowledge or information in the medical community at large under the current state of the art of medical care and research. 4. Thereafter, the R O should review the claims folder to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report and required opinion to ensure that they are responsive to and in compliance with this remand and if they are not, the RO should implement corrective procedures. 5. After undertaking any other development deemed appropriate, the RO should re-adjudicate the issue on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ MICHAEL MARTIN 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).