Citation Nr: 1330378 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-26 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from October 1983 to February 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, denying service connection for PTSD. As an introductory matter, the Board notes that the Veteran's claim has previously been treated as simply entitlement to service connection for PTSD. However, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that a claimant seeks service connection for the symptoms of a disability, regardless of how those symptoms are diagnosed or labeled. The record reflects numerous psychiatric diagnoses. Therefore, the Veteran's claims have been recharacterized as one of service connection for any psychiatric disorder, to include PTSD. The issue has thus been restated on the title page of this decision. 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 a psychiatric disorder. Specifically, the Veteran has alleged that he suffers from PTSD. Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As already noted, the Veteran is seeking service connection for psychiatric symptomatology, rather than one specific diagnosis. A review of the record reveals numerous diagnoses, including bipolar disorder, a personality disorder, a depressive disorder, a mood disorder and opioid/alcohol dependence. A January 2009 VA treatment record also notes that the Veteran had been variously diagnosed with PTSD and bipolar disorder. Therefore, there is certainly evidence of a current disability. In addition, the Veteran's service treatment records reflect that in November 1985, he underwent a mental status examination. The Veteran was diagnosed with a mixed personality disorder with antisocial and passive-aggressive features. It was noted that this was of sufficient severity that it would significantly impair his ability to function in a military environment. It was also noted that this condition preexisted military service. In light of the in-service evidence of psychiatric treatment, along with the evidence of current psychiatric diagnoses, the Board finds that the Veteran should be afforded a VA psychiatric examination. The examiner should clarify what, if any, psychiatric diagnosis or diagnoses are appropriate. The examiner should then opine as to whether it is at least as likely as not that any diagnosed disability manifested during, or as a result of, active military service. In formulating an opinion, the examiner must review and discuss the in-service evidence of psychiatric symptomatology, and consider the lay assertions of the Veteran. If PTSD is diagnosed, the examiner should opine as to whether it is at least as likely as not that this disability manifested as a result of a verified in-service stressor (assuming that any in-service stressor has in fact been verified by the date of the scheduled examination). In addition, the Board notes that if a personality disorder is diagnosed, it is not considered to be a disease or injury within the meaning of applicable legislation for VA compensation purposes. 38 C.F.R. § 3.309(a), 4.9. Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). Congenital or developmental "defects" therefore automatically rebut the presumption of soundness when entering service and, therefore, necessarily are considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9; Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that the Secretary's exclusion of personality disorders from "diseases" or "injuries" as a congenital or developmental defect, such that the presumption of soundness does not apply, to be a valid exercise of the authority granted to the Secretary). As such, "[s]ervice connection [for these type of] disorders, whether on a direct basis or by aggravation, is . . . prohibited . . . ." 61 Fed. Reg. 52,695. However, with that having been said, VA's General Counsel clarified that a congenital or developmental defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs due to military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Therefore, if a personality disorder is diagnosed, the examiner should offer an opinion as to whether a disability is superimposed on the personality disorder and whether the superimposed disability had its onset during, or is otherwise related to, the Veteran's military service. Finally, the most recent record of VA treatment is dated June 2009. Relevant records prepared since this time should be obtained and incorporated into the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with VCAA compliant notice. Specifically, the Veteran should be notified of what is required to substantiate a claim of service connection for a generic psychiatric disability - not just the specific requirements for PTSD. 2. The Veteran should also be provided with the opportunity to provide additional information in support of his alleged in-service stressor(s). If any additional evidence is provided by the Veteran, all reasonable steps should be taken to attempt to verify the alleged stressor(s). All steps taken should be documented in the claims file. 3. VA treatment records prepared since June 2009 should be obtained and incorporated into the Veteran's claims file, either physically or electronically. 4. After completion of the above, the Veteran should be scheduled for a VA psychiatric examination. The claims file and a copy of this remand must be made available to the physician designated to examine the Veteran. All indicated tests and studies, including psychological testing, should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis(es). The examiner should be asked to provide an opinion addressing the following questions: (a) Is a diagnosis of any psychiatric disorder, to include PTSD, appropriate ? (b) If PTSD is diagnosed, is it at least as likely as not that this condition is secondary to a verified in-service stressor (assuming any stressor has in fact been verified by the time of the scheduled examination). (c) If the Veteran is found to have a psychiatric disorder(s) other than PTSD, is it at least as likely as not that this disorder(s) manifested during, or as a result of, military service? (d) Finally, if the Veteran is found to suffer from a 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. The examiner should specifically note and consider the in-service evidence of psychiatric symptomatology. The lay assertions of the Veteran must also be considered and discussed when formulating any opinions, and a complete rationale must be provided for all opinions expressed. 5. The AMC should then readjudicate the Veteran's claim. 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 considered pertinent to the issues currently on appeal. 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). _________________________________________________ WAYNE M. BRAEUER 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).