Citation Nr: 1330620 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 08-04 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney-at-Law ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from January 1966 to January 1969, and from September 1970 to July 1982, followed by service in the National Guard. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating determination of the Department of Veterans Affairs (VA) Regional Office located in Boise, Idaho. In a June 2010 decision, the Board denied service connection for PTSD but expanded the issue to include service connection for a psychiatric disorder other than PTSD, which currently remains on appeal. In June 2010, the Board remanded this matter for further development. In a December 2011 decision, the Board denied service connection for an acquired psychiatric disorder other than PTSD. The Board also denied service connection for a chronic disorder manifested by headaches, to include migraine headaches. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In September 2012, a Joint Motion for Partial Remand (JMPR) was filed by the Parties of record. The JMPR indicated that the Veteran was not pursuing his claim of entitlement to service connection for a chronic disorder, manifested by headaches, to include migraine headaches. The Parties further requested that the Court vacate the decision as it related to the denial of service connection for a psychiatric disability other than PTSD and remand the matter for actions consistent with those set forth in the JMPR, which the Board will discuss in more detail below. In September 2012, the Court ordered that the JMPR be granted and that the part of the Board's decision that denied entitlement to service connection for an acquired psychiatric disorder other than PTSD be remanded for actions consistent with the terms of the JMPR. The Court also dismissed the issue of entitlement to service connection for a chronic disorder, manifested by headaches, to include migraine headaches. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of service connection for an acquired psychiatric disorder other than PTSD is REMANDED to the RO. REMAND In its September 2012 JMPR, the Parties agreed that the matter should be remanded because VA failed to provide an adequate statement of reasons or bases for its credibility determination. The Parties noted that the Board determined that the Veteran was an unreliable historian regarding the onset of his symptoms and found him not credible. The Parties observed that, in explaining this finding, the Board relied upon the examination conducted for enlistment in the National Guard in October 1986 as affirmative evidence that the Veteran was not suffering from any psychiatric disorder four years after discharge, even though he was treated for a suicidal gesture in October 1980. The Parties noted that the Board assigned a greater probative weight to the normal psychiatric history reported by the Veteran in October 1986 because it was made contemporaneous to treatment and prior to seeking monetary benefits. The Parties agreed that the Board erred in this determination of credibility because the Veteran was not seeking medical treatment when he was examined in conjunction with his enlistment in the National Guard in October 1986. The Parties indicated that remand was warranted for the Board to reconsider the probative value it had placed upon the October 1986 National Guard entrance examination and its determination of the Veteran's credibility to report onset of psychiatric symptoms. The Parties noted that on remand the Veteran was free to submit additional evidence and argument on the questions at issue. In August 2013, the Veteran, through his attorney, submitted a July 2013 report from J. Smith, Ph.D. In the report, Dr. Smith indicated that he had reviewed the Veteran's entire claims folder and had conducted a telephone interview with the Veteran. Following review of the claims folder and telephone interview with the Veteran, Dr. Smith rendered Axis I diagnoses of major depressive disorder, chronic, with psychotic features, and PTSD. Dr. Smith was asked the question of whether the Veteran had a condition involving psychosis with one year of discharge from active duty in July 1982 and if so did it manifest psychosis to a compensable degree of 10 percent or more within one year of his separation from service. Dr. Smith stated that it was his opinion that the Veteran experienced psychosis within one year of discharge from active duty on July 9, 1982. He indicated that the Veteran reported that during the year from July 1982 to July 1983 he had become more withdrawn, and was experiencing auditory hallucinations which led to his attempt to jump off a bridge to kill himself; the police intervened and the Veteran was taken to St. George's Hospital for 4-5 days for psychiatric care. The Veteran reported that, during this first post-service year, he often heard voices telling him "you'd be better off dead." The Veteran stated that during the first year of post-service, he saw a psychiatrist in Lewiston, Idaho, regarding his many difficulties; the Veteran stated that the psychiatrist was sufficiently concerned about his mental state that he wrote a letter which effectively blocked the Veteran from being able to obtain a weapon. Dr. Smith indicated that the serious intrusion and effects of the auditory hallucinations on the Veteran during his first year post-discharge from service was clearly greater than 10 percent compensable. The Board notes that the opinion of Dr. Smith is the first one of record linking the Veteran's current psychiatric disorder to his period of service, including the one year period following the Veteran's separation from service. In his report, Dr. Smith references a period of hospitalization at St. Gilbert's Hospital for four or five days, within the first year of the Veteran's separation of service, as one of the bases for his opinion that the Veteran experienced psychosis within one year of service. This is the first report of treatment at St. Gilbert's Hospital in the record. The Board further observes that the circumstances surrounding the Veteran's claimed hospitalization at St. Gilbert's Hospital within a year of service (from July 1982 to July 1983) mirror the circumstances surround the Veteran's period of hospitalization at St. Joseph's Regional Medical Center in April 1997. Based upon the above, an attempt should be made to obtain treatment records from St. Gilbert's Hospital for the period from July 1982 to July 1983. The Veteran should be requested to provide the address of St. Gilbert's Hospital and the exact dates of treatment at that facility along with written authorizations to obtain copies of all treatment records associated with that hospitalization. The Veteran should also be requested to provide the name and address of the private psychiatrist who treated him in Lewiston, Idaho, within his first year of separation from service so that an attempt may be made to obtain these purported records. Moreover, as this matter is being remanded, the claims folder and all other pertinent information should be returned to the examiner who performed the August 2011 VA psychiatric examination, if available, with a request that he review the additional evidence received, in the form of any additional records received from St. Gilbert's Hospital and/or the private psychiatrist, and the July 2013 opinion prepared by Dr. Smith, to determine what impact, if any, this additional evidence has upon his previous opinion. As to any acquired psychiatric disorder found (distinguished from a personality disorder), the VA examiner, when rendering his opinion, is to specifically take note that the Veteran was presumed to have been in sound condition when examined, enrolled, and accepted for service. The examiner is also requested to comment on the specific opinions rendered by Dr. Smith and his reasons for agreement or disagreement with the rendered opinions, to be accompanied by detailed rationale. 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) (2013). Expedited handling is requested.) 1. Private treatment records. The RO should request that the Veteran provide the address of St. Gilbert's Hospital along with exact dates of treatment for psychiatric problems at that facility during the 1982-1983 time period, as well as the name and address of the private psychiatrist whom he asserts that he saw in Lewiston, Idaho, within one year of his separation from service. The Veteran should also be requested to provide written authorizations so that copies of all of his treatment records can be obtained from St. Gilbert's Hospital and from the private psychiatrist whom he saw within the first year of his separation from service, and should be associated with the record. 2. VA addendum opinion or examination and opinion. After performing (1) above, the claims folder should be returned to the examiner who performed the August 2011 VA psychiatric examination, if available, with a request that he review the additional evidence received, in the form of any additional records received from St. Gilbert's Hospital or the private psychiatrist who treated the Veteran within one year of service, and the July 2013 opinion prepared by Dr. Smith for an addendum opinion. The VA examiner should state what impact, if any, this additional evidence has upon his previous opinion. As to any acquired psychiatric disorder found (distinguished from a personality disorder), the VA examiner is to specifically take note that the Veteran was presumed to have been in sound condition when examined, enrolled, and accepted for service. The examiner is also requested to comment on the specific opinions rendered by Dr. Smith and his reasons for agreement or disagreement with the rendered opinions, to be accompanied by detailed rationale. If the August 2011 VA examiner is unavailable, refer the claims folder to another VA examiner, with the examiner being requested to render an opinion as to the nature and etiology of any current psychiatric disorder and its relationship, if any, to the Veteran's period of service or the one year presumptive period following service. As to any acquired psychiatric disorder found (distinguished from a personality disorder), the VA examiner is to specifically take note that the Veteran was presumed to have been in sound condition when examined, enrolled, and accepted for service. The examiner is also requested to comment on the previous opinions of record, to include the July 2013 opinion from Dr. Smith, and the reasons for agreement or disagreement with the previously rendered opinions, and to provide reasons for the opinion. 3. After completion of the above and any development resulting from this remand, the RO may deem appropriate, the RO should re-adjudicate the issue of service connection for an acquired psychiatric disorder other than PTSD. If the benefit sought on appeal is not granted, the Veteran and his attorney should be provided with a Supplemental Statement of the Case (SSOC). An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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. Parker 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) (2013).