Citation Nr: 1328094 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 06-34 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from January 22, 1975 to April 22, 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefit sought on appeal. The Veteran submitted a Notice of Disagreement (NOD) with this determination in April 2006 and timely perfected his appeal in October 2006. The Board in September 2010 issued a decision denying the claim. However, the Veteran timely appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court), and the Court by a July 2011 Order approved a July 2011 Joint Motion by the VA Secretary and the Veteran vacating the Board's September 2010 decision. The matter was then returned to the Board. In October 2011 and in October 2012, the Board remanded the matter to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The psychiatric disorder claim on appeal was previously characterized as one solely for service connection for depression. However, in a recent judicial precedent, the Court held that claims for service connection for PTSD include claims for service connection for all psychiatric disabilities reasonably raised by the Veteran or the evidentiary record, based on the inherent unreasonableness of imputing self-knowledge of mental conditions from which the Veteran may be suffering. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Similarly, in this case, the Veteran's claim required broadening based on the evidence and argument raising the question of entitlement to service connection for PTSD. The psychiatric disorder claim on appeal was accordingly restyled by the Board in October 2011 as a claim of entitlement to service connection for a psychiatric disorder, to include depression and PTSD. 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 has claimed that he has a psychiatric disorder that began during active duty. He was provided with a VA examination in July 2012, in order to determine whether he met the criteria for a diagnosis of PTSD, and to determine if he had any other currently diagnosed psychiatric disorders related to active duty. The examiner who provided the July 2012 VA examination diagnosed depressive disorder not otherwise specified, and found that it was not related to service. In rendering her opinion, she made reference to the Board's September 2010 decision, noting that the Veteran "did not make report of depressive symptoms while in service and the 2010 Appeal Board accepted as fact, during the appeal case, that Veteran's depression was not diagnosed until decades after service with no treatment in the interim." However, the Board's September 2010 decision was appealed to the Court and was vacated and remanded, in part, because the Board had found that a VA examiner had based his opinion on the lack of evidence describing in-service and post-service psychiatric symptoms. The Court specifically noted a medical record dated in September 2011, in which a VA examiner summarized the Veteran's psychiatric history. Therefore, the examiner's reliance on this finding is in error. The evidence of record, some of which is included in a summarization of the Veteran's history in the July 2012 examination report, reflects that the Veteran has a long history of psychiatric treatment. Medical records from 2005 show that the Veteran was hospitalized in the late 1990's, and a notation in October 2001 reflects that the Veteran had been hospitalized approximately 15 times since 1975. It does not appear that the examiner took these records into account when rendering her nexus opinion with regard to the Veteran's currently diagnosed depressive disorder. In addition, the Veteran has reported ongoing symptoms of depression since service. While the examiner did not have any specific question regarding the Veteran's credibility, she did not appear to take these reports into consideration. On remand, an opinion should be obtained as to whether the Veteran's depression is related to service. The examiner must address the Veteran's psychiatric treatment and reports of ongoing symptoms since service. In addition, the examiner diagnosed a personality disorder not otherwise specified. The Board notes that, generally, a personality disorder is not eligible for service connection, as it is not considered a disease or injury for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2012). However, such condition may be service-connected if it is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996); Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004). The July 2012 examiner noted that the Veteran had a personality disorder in service, and found that it was exacerbated in times of stress, and interfered with his functioning to the point that it was recognizable be others. The examiner opined that his personality disorder, which existed prior to service, exacerbated mental health conditions claimed in service as "inability to tolerate stress." As this opinion is unclear as to whether there was a superimposed disease or injury that aggravated his personality disorder during service, clarification is required. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should be provided to a VA examiner to review the record and provide an opinion as to whether the Veteran's diagnosed depressive disorder is related to service, and to determine whether the Veteran's personality disorder was aggravated by a superimposed disease or injury during service. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this opinion, and the report should reflect review of these items. The examiner should then address the following: (a) Is it at least as likely as not that the Veteran's depressive disorder manifested during, or as a result of, a period of active military service? The examiner should note that reliance on the Board's 2010 decision is not allowed, as this decision has been vacated. The finding that the Veteran did not have any treatment since service is in error. The examiner should comment on the VA medical records reflecting the Veteran's history of psychiatric treatment, including the medical records from 2005 show that the Veteran was hospitalized in the late 1990's, and a notation in October 2001 (referred to in the July 2012 examination report) reflecting that the Veteran had been hospitalized approximately 15 times since 1975. In addition, the examiner should address the VA medical record dated September 11, 2001 by Ray Dupre, PH.D C.A.P, regarding the Veteran's history. (b) With regard to the Veteran's personality disorder, the examiner is asked to opine as to whether it is at least as likely as not that the Veteran suffers from additional disability due to aggravation of the personality disorder during military service because of superimposed disease or injury. A complete rationale for all opinions expressed must be provided, and the examiner must fully consider and discuss the Veteran's lay assertions of symptomatology and chronicity. 2. Then, readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC), containing notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations. An appropriate period of time should be allowed for response. 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). _________________________________________________ J.A. MARKEY 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).