Citation Nr: 1328692 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-34 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as anxiety and depression, to include as secondary to service-connected pseudofolliculitis barbae. 2. Entitlement to a total disability evaluation for individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1976 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The case was previously remanded in September 2010. 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 is entitled to service connection for an acquired psychiatric disorder that began while in service, and has continued ever since. He contends that his psychiatric disorder is also secondary to his skin disability. The Veteran's February 1976 entrance examination did not diagnose any psychiatric disorder. A February 1976 note indicates that he was evaluated in light of a record of arrest for "joy riding," however, the impression following a neuropsychiatric evaluation was that the appellant was emotionally immature but qualified for enlistment. A service treatment record show that the Veteran was seen by mental health counseling services for difficulty adjusting to the military structure within his unit, and reports of conflict with supervisors. He was diagnosed as having an adjustment reaction coupled with an immature personality. The Board notes that while this treatment report is undated, it was prepared at a clinic at Fort Campbell, Kentucky, and the personnel records show that the appellant arrived at Fort Campbell in June 1976, i.e., four months after he joined the service, and after he had completed both basic training and advanced individual training. Personnel records show that in April 1977 discharge was recommended because the Veteran lacked motivation to function properly as a soldier, had an apathetic attitude towards service, and needed to be constantly supervised. The personnel records otherwise show a number of counseling statements for such issues as talking while in formation, failure to follow instructions, a bad attitude, and disrespect. In 2001, the Army Board of Corrections of Military Records declined to grant the appellant a medical discharge. VA treatment records show that the Veteran received mental health treatment beginning in 1994. His diagnoses have varied throughout the course of treatment, but have included schizoaffective disorder, psychosis not otherwise specified, and bipolar disorder stage one. At his July 2010 hearing the Veteran reported that he did not seek mental health treatment from the time he separated from service until the mid-1990s because he feared being institutionalized for his psychiatric problems. There is a July 2006 VA examination wherein the examiner indicated that he reviewed the claims folder, which then consisted of a single folder. The Board observes that the claims file now consists of three folders, plus an electronic record stored on Virtual VA. The July 2006 examiner reasoned that it was as likely as not that the Veteran's dermatological condition decreased his self-esteem and increased his anxiety. The examiner opined that the Veteran's psychosis and thought disorder preceded puberty and the actual onset of the skin condition. The examiner concluded that it was less likely than not that the Veteran's dermatological disorder was in any way causative of his schizoaffective disorder. The examiner, however, indicated that the skin disorder was the Veteran's primary focus of anxiety and depression, such that it was more likely than not that the appellant's primary psychiatric disorder was his schizoaffective disorder and ongoing cannabis abuse/dependence. The examiner concluded that it was as likely as not that the Veteran's ongoing substance abuse "may further" aggravate his psychotic symptoms. The examiner also concluded that it was "as likely as not, that his psuedofolliculitis barbae may further exacerbate to a minor extent his underlying mental illness." Another VA examination is necessary, as the opinion provided in 2006 was inadequate to determine whether it is at least as likely as not that the Veteran has an acquired psychiatric disorder that is related to service, or is related to or worsened by service-connected pseudofolliculitis barbae. In the July 2006 VA examination, the examiner indicated that the Veteran reported experiencing psychotic symptoms dating back to his time in elementary school, to include delusions of thought control related to touching school equipment, fighting in response to feeling persecuted, and counseling for inappropriate behavior in high school. The examiner opined that the Veteran had a history of psychosis, diagnosed as schizoaffective disorder, dating to childhood onset. The examiner reasoned in part that the Veteran had reportedly engaged in a lot of fighting in elementary school related to paranoia and delusions of persecution, and believed that the Mafia followed him while in high school. The examiner indicated that the Veteran's psychosis and thought disorder reportedly preceded puberty and the actual onset of his skin disorder. The examiner also indicated that the Veteran had a strong family history of mental illness with the institutionalization of his father for several years, and a reported "nervous breakdown" of his mother. The law, however, provides that a veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). To rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The clear and unmistakable evidence standard requires that the result be undebatable. Cotant v. West, 17 Vet. App. 116, 131 (2003). In considering the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability, VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (citing 38 U.S.C.A. § 1153). The cited statute provides that aggravation by service is presumed where there is an increase in disability during service, unless there is a specific finding that the increase is due to the natural progress of the disease. Given the Veteran's reported psychiatric history, the fact that the appellant was able to complete about 15 months of active duty before being discharged for behavioral reasons, and the July 2007 examiner's opinion that psychosis dated to childhood, the Board would find it helpful if a medical opinion first addressed whether the appellant's psychiatric symptoms clearly and unmistakably preexisted service and, if so, whether it is clearly and unmistakably evident that they were not aggravated by service. The clear and unmistakable evidence standard requires that the result be undebatable. Cotant, 17 Vet. App. at 131. If the examiner concludes that the disability clearly and unmistakably preexisted service, then the examiner must address whether it is clearly and unmistakably true that there was no increase in disability while in service. If, however, the examiner concludes that there was an increase, then the examiner must address whether any increase was clearly and unmistakably the result of the natural progress of the disease. The issue of entitlement to individual unemployability benefits is intertwined with the issue of entitlement to an acquired psychiatric disorder, such that it too will be remanded pending adjudication of the issue of service connection of an acquired psychiatric disorder. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Ongoing VA treatment records dating since 2006 should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002 & Supp. 2012). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding, pertinent records of medical evaluation and treatment of the Veteran dating from 2006 from any pertinent VA or private medical facility. If the RO/AMC cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Then, schedule the Veteran for a VA psychiatric examination. The claims folder, access to Virtual VA and a copy of this remand must be provided to the examiner. The examiner should review the record, and indicate such review in the examination report. Following examination, to include any necessary tests and indicated studies, the examiner should opine as to the following: (A) Does the Veteran have a psychiatric disability that clearly and unmistakably preexisted service? The clear and unmistakable evidence standard requires that the result be undebatable. (B) If not, then is it at least as likely as not, i.e., is there a 50 percent or greater probability, that any currently diagnosed psychiatric disorder was (i) caused by or incurred in service, or (ii) caused by his service-connected pseudofolliculitis barbae, or (iii) permanently aggravated by pseudofolliculitis barbae? In so doing please discuss whether there has been a continuity of symptomatology since service separation. (C) If the examiner finds that a diagnosed psychiatric disability clearly and unmistakably preexisted service, the examiner must then address whether it is clearly and unmistakably evident that there was no increase in the degree of disability during service? (D) If there was an increase in disability during service, then was that increase clearly and unmistakably due to the natural progress of any preexisting psychiatric disorder? (E) The examiner must address the nature of any impairment in the Veteran's ability to work due to his various service-connected disabilities. If the appellant is unemployed, the examiner must opine whether it is at least as likely as not, that service-connected disabilities alone preclude the Veteran from obtaining and maintaining substantially gainful employment. Any opinion expressed must be accompanied by a well reasoned and fully explanatory rationale that is supported by references to the pertinent evidence that forms the basis for any opinion offered.. 3. The Veteran is to be notified that it is his responsibility to report for any examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The RO/AMC must ensure that the examiner documented their consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. The RO/AMC should then readjudicate the issues on appeal. If any benefit is not granted, the Veteran and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). _________________________________________________ DEREK R. BROWN 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).