Citation Nr: 1328271 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-38 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder and major depression. 2. Entitlement to service connection for a disability manifested by chronic neck pain. 3. Entitlement to service connection for a disability manifested by chronic lower back pain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from July 1975 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 RO decision, which denied claims for service connection for major depression and bipolar disorder, chronic neck pain, chronic low back pain, and entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran only perfected an appeal with respect to the first three issues; thus, the issue of entitlement to a TDIU is not before the Board. In May 2013, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is also of record. 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 Acquired Psychiatric Disorder The Veteran's April 1975 service entry physical examination report reflects that he was psychiatrically normal. The Veteran indicated on an April 1975 Report of Medical History that he did not have nervous trouble of any sort, depression, or worry. In June 1976, the Veteran was seen for a service psychiatric evaluation. The examiner recorded the Veteran's self- reported history of having few friends in school and always having difficulty getting along with people in the military. The report reflects that the Veteran had failed every grade after the sixth grade, and he had been kicked out of the tenth grade for fighting. He had a poor relationship with his parents. The examiner found that the Veteran had a depressed mood. The examiner concluded that the Veteran had an immature personality with strong and unfulfilled dependence needs. The Veteran was recommended for discharge. The Veteran's July 1976 service separation examination report contains no psychological remarks. On VA compensation and pension examination in June 2009, the examiner reviewed the Veteran's service treatment reports. It was noted that the Veteran's father was bipolar, and his mother was depressed. After performing a mental examination, the examiner gave the Veteran a diagnosis of bipolar disorder. The examiner opined that the bipolar disorder was as likely as not related to the Veteran's family history of mental health issues. He stated that it was as likely as not that the Veteran's mental health issues developed and existed prior to his service, as the Veteran had been expelled from school for fighting, and he had a family history of mental health issues. He further opined that there was no documentation of aggravation during the Veteran's year spent on active duty. He considered the Veteran's statement that he was treated with Lithium while on active duty, but he was unable to find documentation of any such treatment. In November 2009, the Veteran's VA mental health provider wrote that the Veteran's bipolar issues had their onset as a result of stressors from the military. He said that the fact that the Veteran was discharged from school for fighting did not show that the Veteran was bipolar prior to service. He said that the Veteran was treated with Lithium while on active duty which suggested that he developed his mental problems while on active duty. He reiterated that the Veteran's bipolar disorder developed while he was in the military. The aforementioned documents provide problematic and conflicting evidence regarding the etiology of the Veteran's psychological issues. While the November 2009 treatment note from the Veteran's VA mental health provider supports the claim for service connection, it appears to rely on evidence not supported by the claims file. For example, while the treatment provider said that the Veteran was treated with Lithium while on active duty, the service treatment records do not reflect that the Veteran was treated with Lithium while on active duty. In fact, the service treatment records reflect that the Veteran was seen for a psychiatric examination on a single occasion while on active duty, and that occasion was not for treatment, but for an evaluation in connection with an administrative discharge. Conversely, the June 2009 VA examination report suggests that the Veteran's psychiatric disorder pre-dated his active duty. However, the Veteran's April 1975 service entry examination report reflects that he was psychiatrically normal. In light of the conflicting etiology opinions of record, the Board finds that the Veteran should be afforded a new compensation and pension mental examination for an etiology opinion that is based on all of the evidence of record. As the Veteran received a diagnosis of a personality disorder while on active duty, this examination should also clarify if the Veteran has a personality disorder. In that regard, the Board notes that personality disorders are considered congenital or developmental defects and, therefore, are not generally considered a disease or injury for the purpose of service connection. 38 C.F.R. § 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, the VA Office of General Counsel held that service connection may be granted for a congenital or developmental disorder on the basis of in-service aggravation. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990) [a reissue of General Counsel Opinion 01- 85 (March 5, 1985)]. In that opinion, it was noted that a disease considered by medical authorities to be of congenital, familial (or hereditary) origin by its very nature preexists claimants' military service, but that service connection for such diseases could be granted if manifestations of the disease in service constituted aggravation of the condition. See also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). To the extent that a personality disorder is not a disease, the Board notes that service connection may still be granted for any superimposed disease or injury. Neck and Back Pain The Veteran's service treatment records show that in July 1975, the Veteran complained of back cramps. The treatment provider thought the Veteran had a muscle strain. In December 1975, the Veteran complained to a service examiner of pain that started around his right shoulder and radiated to his lower back. The examiner indicated that the Veteran had a strain. A January 1976 service treatment note reflects that the Veteran had lower back pain and refused to go on light duty. The examiner observed that the Veteran's back was unremarkable. The July 1976 service separation examination report contains no notations regarding the Veteran's lower or upper back. A private X-ray of the cervical spine taken in February 2005 revealed minor degenerative changes in the mid-cervical spine without fracture or dislocation. A private medical record from March 2005 contains a history of a whiplash injury in 1982. A private X-ray of the lumbar spine taken in October 2005 revealed minimal multilevel spondylosis and calcified atherosclerosis. Another private medical record from July 2006 reflects that two months previously, the Veteran fell off of a ladder onto his back at work. In a July 2007 medical history, the Veteran wrote that he injured his back in a car wreck in 1987. In September 2007, the Veteran acknowledged that he experienced whiplash in an accident in 1987, but he also related that he was in a car accident while on active duty in January 1976. He said that the car hit a curb, and the passenger's side of the car hit a telephone pole. He related that he was sitting in the front passenger's seat, and they did not report the accident because they were afraid of repercussions. A VA X-ray of the cervical spine taken in October 2007 revealed degenerative joint disease. A contemporaneous X- ray of the lumbar spine showed spondylosis. The Veteran was given a VA compensation and pension examination in June 2009. The examiner indicated that the examination was strictly for the lumbar spine. The examiner noted the Veteran's recollection of being in an unreported accident in 1975 which caused a whiplash. After examining the Veteran, the examiner opined that the onset of any current lumbar spine disability was not due to an injury or a back condition that had its onset during military service, as the Veteran did not seek any medical attention or intervention for back problems for 25 to 30 years following his active duty. He felt that the Veteran's current lumbar spine problems were due to degenerative changes complicated by fibromyalgia and obesity. During his March 2013 Board hearing, the Veteran mentioned that while on active duty, he was required to unload trains and frequently pulled his back. He described being in a car accident while on active duty where the driver was drunk and hit a telephone pole. He said that he was not wearing a seat belt, and he did not seek treatment until after he left the military. He added that he was in a second car accident as a civilian. He also described his VA compensation and pension examination. He felt that the examination was inadequate, as all he did was remove his clothes and tiptoe before he was dismissed. He said that he requested another examination but was not given one. The Board finds the Veteran's testimony regarding experiencing a whiplash due to an unreported automobile accident while on active duty to be competent, as this testimony involves events observed through the senses. Further, as the other evidence of record does not appear to contradict the Veteran's report; his statements have also been found to be credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Because the Board has accepted the occurrence of an in-service event, and there is evidence of a current disability of the neck, the Board concludes that a VA examination is warranted to determine the etiology of any currently present neck disability. See McLendon v. Nicholson, 20 Vet App. 79 (2006). The Board recognizes that the requested VA examination report has the potential to affect the claim for service connection for a lower back disability. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources , the claims are inextricably intertwined. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding pertinent treatment records. All records and/or responses received should be associated with the claims file. 2. The Veteran should be afforded a VA psychiatric evaluation to determine whether he suffers from any psychiatric disorders, and their etiologies. The claims file, including any pertinent evidence from the electronic file, should be provided to the evaluator. Following a review of the evidence, interview with the Veteran, and administration of any tests deemed necessary, the evaluator should identify all of the Veteran's current psychiatric disorders that meet the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. The examiner should also identify personality disorders that meet the DSM-IV criteria. The examiner/reviewer is asked to provide an opinion regarding the following: (a) Whether it is at least as likely as not (a 50/50 probability or greater) any current personality disorder was subject to any superimposed disease or injury, or was otherwise permanently aggravated during military service; (b) Whether an acquired psychiatric disorder clearly and undebatably preexisted the Veteran's entrance into military, and if so, whether there is evidence of an increase in the severity of that disorder during service and if so, whether such increase was clearly and undebatably due to the natural progression of the disorder (as opposed to other factor(s)); (c) Whether it is at least as likely as not (a 50/50 probability or greater) any other current acquired psychiatric disorder had its onset in service; and (d) Whether it is at least as likely as not (a 50/50 probability or greater) any other current acquired psychiatric disorder was otherwise caused or aggravated by the Veteran's military service. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his disability and the continuity of symptomatology. A rationale must be provided for all rendered opinions. 3. The Veteran should be afforded a VA orthopedic evaluation to determine whether he suffers from any neck disabilities, and their etiologies. The Veteran's claims file, including any pertinent evidence in his electronic file, should be forwarded to the examiner. The examiner(s) should indicate that he/she reviewed the file in conjunction with the examiner. The examiner(s) is asked to provide the following opinion: It at least as likely as not (a 50 percent or better probability) that the Veteran's neck disability is etiologically related to his active service? The examiner is asked to specifically comment on the Veteran's complaints of in-service back pain and an in-service unreported automobile accident. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his disorder and the continuity of symptomatology. A rationale must be provided for all rendered opinions. 4. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable 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 LANE 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).