Citation Nr: 1329159 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 09-46 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from December 1979 to July 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. This matter was remanded in January 2012 for further development. The United States Court of Appeals for Veterans Claims (the Court) indicated that the VA cannot unduly limit its consideration of claims for service connection for specific mental disorders under circumstances in which other diagnosed psychiatric disabilities may be present. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) [holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled]. In light of Clemons, and in view of the diagnosis of depression, personality traits, r/o bipolar disorder, etc., the Board has expanded the issue to include any acquired psychiatric disability. The issue is as stated on the title page. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Board remanded the claim in January 2012 so that the RO could attempt to verify the Veteran's alleged PTSD stressors. The RO properly requested additional information regarding the Veteran's alleged stressors; but the Veteran failed to provide sufficient detail with which to verify them. Consequently, the Board finds that the RO substantially complied with the January 2012 remand instructions. However, in light of Clemons, the Board finds that a VA examination is warranted in order to determine if any other psychiatric disabilities are related to service. The Board recognizes that both the July 1979 induction examination and the July 1980 separation examination reflect normal psychiatric findings. However, when the Veteran completed his July 1980 Report of Medical History, he indicated having experienced depression or excessive worry. Additionally, a June 1980 medical board reflects a diagnosis of passive-aggressive personality within the line of duty and not due to the Veteran's own misconduct. The disability was deemed severe for military life (moderate for civilian life). The Veteran obtained an administrative discharge for reasons of military unsuitability. There was evidence in the medical board to suggest that the psychiatric disability may have pre-dated service. Post service treatment reports reflect diagnoses of depressive disorder, rule out bipolar disorder, alcohol and drug dependence, and personality disorder traits. (See February 2006 discharge record from New York Psychiatric Center, and a May 2006 VA clinical record). In light of the above, the Board finds that a VA examination is warranted for the purpose of determining the nature, etiology, and severity of the Veteran's psychiatric disorder(s). Since there is evidence that the Veteran's disability may have predated service, the Board notes that when no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1111. Therefore the burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government 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. 38 U.S.C.A. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. (CONTINUED ON NEXT PAGE) Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should make sure that the VA records are updated and in the claims folder. 2. The Veteran should be afforded a VA psychiatric examination for the purpose of determining the nature, etiology and severity of any psychiatric disability found. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service treatment records, the medical history obtained from the Veteran, the clinical evaluation, and any tests that are deemed necessary, the examiner should opine: a) whether there is clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. b) if the above answer is negative, then opine whether it is at least as likely as not (a 50 percent or greater probability) that any psychiatric disability began during or is causally related to service. For each opinion given, the examiner must provide a rationale. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 3. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claim remains denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record 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). _________________________________________________ ERIC S. LEBOFF 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).