Citation Nr: 1332311 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 11-34 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for schizophrenia. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a personality disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his mother ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from February 1995 to May 1997 and from July 1999 to February 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) which confirmed and continued an August 2001 rating decision which denied service connection for a personality disorder. A July 2010 rating decision denied service connection for schizophrenia. A hearing before a decision review officer at the RO was conducted in March 2011. A transcript of the proceeding is of record. 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). For the reasons explained below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on his part. REMAND As an initial matter, the Board notes that the September 2009 rating decision confirmed and continued the August 2001 denial of service connection for a personality disorder. The Veteran filed a notice of disagreement with that decision in April 2010. No Statement of the Case (SOC) has been prepared with respect to that issue. Although an SOC was prepared on the issue of service connection for schizophrenia, the claim for service connection for a personality disorder was separately appealed and denied. The Veteran has been diagnosed with both disorders during the course of the claim, and the personality disorder was the subject of a prior denial. Thus, the issues should be considered separately. See Boggs v. Peake, 520 F.3d 1330, 1335 (Fed.Cir.2008) (claims that are based upon distinctly and properly diagnosed diseases or injuries must be considered separate and distinct claims). Accordingly, as an SOC has not been provided on the issue of service connection for a personality disorder, remand is required. The United States Court of Appeals for Veterans Claims (Court) has indicated that when a claimant submits a notice of disagreement and the RO has not issued an SOC on that issue, remand for issuance of an SOC is required. Manlincon v. West, 12. Vet. App. 238, 240-41 (1999). After the RO has issued the statement of the case, the claim should only be returned to the Board if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Concerning the appeal for service connection for schizophrenia, the Board notes that service treatment records dated in 2001 indicated that the Veteran did not have a severe mental disorder, but he did possess long-standing maladaptive personality traits and behavior patterns of such severity to preclude adequate military service. The diagnosis was schizotypal personality disorder. In June 2005, the Veteran presented at an emergency room of a VA facility and complained of depression and suicidal thought of two days duration. He stated he has been depressed for several years and was separated from service due to drug abuse. He stated that he has been diagnosed with bipolar disorder manic depression. He denied previous psychiatric treatment. The diagnoses were substance-induced mood disorder, depressed, and polysubstance abuse. The Veteran was hospitalized at a private facility in December 2005. It was noted that he had been diagnosed with acute psychosis due to substance abuse and withdraw during hospitalization immediately prior to his admission at this facility. He was not considered psychotic and engaged in moderate drug-seeking behavior. It was noted that a remarkable feature of his mental status was his extreme confidence in his ability to influence and persuade others. The diagnoses were cocaine abuse and schizotypal personality disorder, by history. A private evaluation for SSA disability purposes dated in January 2006 is of record. He stated that he and his wife were separated for the past two years. He also stated that he experienced a period of depression when his wife left him. The Veteran stated that he had religious delusions including his belief that he was Jesus Christ. He continued to have these delusions to the present time. The diagnoses were delusional disorder grandiose type, anxiety disorder, not otherwise specified, rule out schizophrenia, and schizotypal personality disorder. An August 2008 VA mental health outpatient consultation diagnosed indeterminate history of depression, possible bipolar disorder, and mixed features of a personality disorder. The Veteran was hospitalized at a VA facility in May 2009. He was diagnosed with schizophrenia. Subsequent treatment records note additional diagnoses of schizophrenia. At the VA examination in August 2009, the examiner, after a review of the Veteran's claims file diagnosed schizotypal personality disorder. The examiner noted that the Veteran was very vague and difficult to get to answer on his symptoms. He first reported he began having auditory hallucinations after he got out of the military. His dates of service were also very unclear. In the fitness for duty for his medical discharge, it stated he had not been present for two years in the military. His symptoms appear to have begun after his military service based on the medical information noted in the chart. However, the schizotypal personality disorder which involved magical thinking with poor social skills would have begun early on and is a longstanding characterological issue. As such, the examiner stated it is not related to military service. At the time of this evaluation, the Veteran's thought processes were goal-directed. His thought content suggested some grandiosity. The examiner indicated his statement that he thinks he is Jesus is questionable. He seemed to be trying to get a reaction from the examiner. He has made this statement in the past as well. He complained he was depressed because of his multiple tattoos that he has on his body. However, he reported getting those after the military. While he claimed to be depressed, he could not describe any symptoms of depression, and his affect actually appeared to be euthymic. He reported he is maintaining his own activities of daily living. He has not worked since he got out of the military. In the past, it was found that he had a cocaine-induced psychosis. This was in 2005, and they did not find him to have a psychotic disorder at that time. They did verify the diagnosis of schizotypal personality. His substance abuse would not be related to military service. He has continued to use crack cocaine by his report, although he said it was a long time ago, which was one week ago. An October 26, 2011, VA mental health disorders examination diagnosed cocaine dependence in remission, and schizotypal personality disorder. The examiner stated that the examination does not support a diagnosis of schizophrenia. The Veteran filed a complaint with the Biloxi, Mississippi police department the same day, requesting that the VA psychologist who conducted the VA examination be arrested for falsifying his medical record so he could not receive VA benefits. He was advised that this was not a police matter. In an October 27, 2011, VA mental health walk-in note, a VA physician indicted that the Veteran claimed he has used cocaine only twice. The diagnosis was paranoid schizophrenia, past cocaine abuse. The physician stated that the Veteran demonstrates both frank delusions and auditory hallucinations, not merely odd beliefs, neither of which are typically associated with Axis II cluster A personality disorders, such as schizotypal or schizoid personality disorders. In a December 2011 addendum to the VA mental health treatment note, the clinician stated that the Veteran's beliefs regarding his divinity in service are more consistent with schizophrenia, as opposed to schizotypal personality disorder. In a March 2013 letter Dr. E.B. stated that the Veteran started feeling like Jesus when he was in the military in 1996. He was diagnosed with schizotypal personality and was discharged from service because of that diagnosis. The Veteran continued treatment for schizophrenia with the VA psychiatrist. In a June 2013 letter, Dr. E.B. stated that the Veteran's schizophrenia began in service, and that the fixed delusions that the Veteran's belief that he was Jesus and had a divine mission are not usually associated with schizotypal personality. There are conflicting opinions in this case that need to be reconciled. The Veteran was diagnosed with a schizotypal personality disorder following evaluation in service in 2001. It was noted that the examining psychologists considered a diagnosis of a formal thought disorder, but ruled it out based on the fact that the Veteran was relatively high functioning (working as a music director, working in his father's car sales business, had recorded and distributed a successful music album) and the report of the Veteran and his wife that there had been no change in functioning over the past several years. Following discharge there was no psychiatric treatment until 2005, when he was diagnosed with acute psychosis due to substance abuse and withdraw, and a short time later, substance induced mood disorder, depressed. Axis II was deferred. He was diagnosed with delusional disorder, grandiose type, anxiety disorder, rule out schizophrenia and schizotypal personality disorder in 2006. The 2009 VA examiner diagnosed schizotypal personality disorder, as did the 2011 VA examiner, who specifically found the Veteran does not meet the diagnostic criteria for schizophrenia. Both examiners had the claims file for review. However, VA treatment records diagnose the Veteran with schizophrenia. It is unclear whether the opinions provided by the treating clinician were based on a review of the entire claims file. Thus, the Board concludes that an additional examination and opinion is necessary. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 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/AMC should undertake all actions required by 38 C.F.R. § 19.26, including issuance of a statement of the case, so that the Veteran may have the opportunity to complete an appeal on his appeal to reopen the previously denied claim for service connection for a personality disorder (if he so desires) by filing a timely substantive appeal. The issue should only be returned to the Board if a timely substantive appeal is filed. 2. Obtain all relevant VA treatment records dating since December 2011 from the Biloxi, Mississippi, VA Medical Center and associated clinics. 3. Schedule the Veteran for a VA psychiatric examination by a psychiatrist to determine the current nature of his psychiatric disability and to obtain an opinion as to whether the Veteran has an acquired psychiatric disorder that is related to service. Any tests deemed necessary, including psychological testing, should be accomplished and the results reported. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: a. Please identify all current psychiatric disorders found on examination. If the examiner concludes the Veteran does not suffer from schizophrenia, he/she should explain why the diagnosis of schizophrenia noted in VA treatment records is not accurate. b. If the Veteran is diagnosed with schizophrenia or other acquired psychiatric disorder, is it more likely (greater than 50% probability), less likely (less than 50% probability), or at least as likely as not (50/50 probability) that the disorder arose during service or is otherwise related to service. In rendering this opinion, the examiner should attempt to reconcile the conflicting medical opinions including, but not limited to the in-service diagnosis of schizotypal personality disorder; the first post service diagnoses in 2005 of an acute psychosis due to substance abuse and withdrawal, and substance induced mood disorder, depressed; the 2009 VA examiner's opinion suggesting the Veteran's assertion of being Jesus was to get a reaction from the examiner and diagnosing schizotypal personality disorder; the 2011 examiner's conclusion that the Veteran did not meet the diagnostic criteria for schizophrenia; and the opinion of the VA treating psychiatrist diagnosing schizophrenia and opining that the delusions in service are not consistent with a personality disorder. The examiner should explain the bases for the conclusions reached. 4. After completing the above development to the extent possible and any additional development deemed necessary, the claim should be readjudicated. If the claim for service connection for schizophrenia continues to be denied, send the Veteran and his representative a supplemental statement of the case and give them time to respond. Thereafter, the case should be returned to the Board if in order. 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). _________________________________________________ K. A. BANFIELD 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).