Citation Nr: 1332787 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 05-13 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a psychiatric disorder, to include major depression, manic depressive disorder, schizoaffective disorder, bipolar disorder, a personality disorder, and a psychosis, including as secondary to a service-connected right wrist disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served with Reserve Components from 1974 to approximately 1996, performing active duty for training (hereinafter: ACDUTRA) and inactive duty training at various times. A period of ACDUTRA from August 18 through 31, 1985, became "active military service" by virtue of a right wrist disability incurred in the line of duty (see claims files, Vol 1). The term "active military service," includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. 38 C.F.R. § 3.6(a) (2013). The claimant achieved "veteran" status by virtue of that short period of active military service. A "veteran" is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 101 (2) (West 2002); see also 38 C.F.R. § 3.1 (d) (2013). The Veteran also performed a brief period of active military service from December 27, 1990, through January 18, 1991. While her official order to active military service is not of record, a DD Form 220, Active Duty Report, reflects that this active duty period was terminated effective January 18, 1991, for an unspecified reason or reasons. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, in relevant part, declined to reopen the Veteran's claim of entitlement to service connection for a manic depressive disorder, claimed as bipolar disorder. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) in January 2006. A transcript of that hearing is of record. In August 2013, the Board notified the Veteran that the VLJ who presided over her hearing was no longer employed at the Board, and that she was entitled to a new hearing before a different VLJ, if she so desired. The Veteran did not respond to the Board's inquiry. In an April 2007 decision, the Board reopened the claim of entitlement to service connection for a psychiatric disorder based on a finding that new and material evidence had been received sufficient to reopen the claim. The claim was then remanded for further evidentiary development. The Board again remanded the claim in July 2009, April 2010, July 2012, and March 2013. For the reasons described below, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on her part. REMAND Unfortunately, yet another remand is required in this case. Although the Board sincerely regrets the further delay, it is necessary to pursue still additional development to ensure that there is a complete record upon which to decide this claim so that the Veteran is afforded every possible consideration. At the outset, the Board notes that the multiple theories of service connection for a psychiatric disorder are raised by the record. First, the Veteran has contended that she developed a psychiatric disorder as secondary to her service-connected right wrist contention. Additionally, contentions and evidence of record suggests that the Veteran may have incurred a psychiatric disorder in 1990 or 1991, during or as a direct result of her short period of active service. Prior remands in this case have focused on obtaining an adequate medical opinion with respect to whether the claimed psychiatric disorder was secondarily caused by or aggravated by the Veteran's service-connected right wrist disability. Notably, however, the most recent August 2012 and April 2013 VA examination reports, which have more thoroughly addressed the aggravation component of the secondary service connection theory, appear to have only specifically addressed the secondary relationship between the Veteran's right wrist disability and a schizoaffective disorder diagnosis. A review of the record, however, reveals multiple additional psychiatric disorders that have been diagnosed throughout the pendency of her appeal. Thus, remand is required in order to obtain a VA opinion addressing the likelihood that a secondary relationship exists between any of the Veteran's diagnosed psychiatric disorders and her service-connected right wrist disability. Moreover, while the multiple VA opinions of record have largely focused on the Veteran's contentions regarding secondary service connection, the opinions have not adequately addressed the likelihood that the Veteran incurred a psychiatric disorder during or directly as a result of her service. In this regard, a January 1991 screening note of acute medical care indicated that the Veteran wished to be reassigned to a non-deploying unit due to her claim of suffering severe emotional distress, which had apparently caused an ulcer. She was noted to have multiple complaints, which appeared to have been intensified due to her imminent deployment to Saudi Arabia. Accordingly, remand is also necessary to obtain an opinion addressing a direct relationship between any diagnosed psychiatric disorder and the Veteran's service. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). The Board further notes that in at least one instance, the Veteran alluded to the death of a fellow service member in a motor vehicle accident as being a potential competing cause of her psychiatric symptoms. See August 2012 VA examination report. Although a PTSD diagnosis does not appear to have been confirmed in the record, given this reported in-service stressor, on remand, a VA examiner should additionally consider whether a PTSD diagnosis is appropriate and if so, whether it is tied to that claimed stressor (or any other in-service stressor that the Veteran may hereafter raise). If a PTSD diagnosis is found to be warranted, further development must be conducted in order to attempt to verify the alleged in-service motor vehicle accident. Additionally, to the extent that the Veteran's VA treatment records indicate that her psychiatric diagnoses have included a personality disorder, the Board notes that such disorders are not diseases or injuries within the meaning of applicable legislation for compensation purposes and with very limited exception cannot be service connected as a matter of law. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2013). Service connection is possible, however, for additional disability superimposed on a personality disorder. VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. Therefore, if the VA examiner determines that the Veteran's psychiatric diagnoses include a personality disorder, in rendering an opinion regarding the etiology of the disorder, the examiner must also specifically offer an opinion as to whether the disorder was subject to, or aggravated by, a superimposed disease or injury during service that has resulted in additional disability apart from the personality disorder. Next, a review of the record reveals that the Veteran has been awarded disability benefits administered by the Social Security Administration (SSA), with a noted disability onset date in March 2003. To date, however, a copy of the Veteran's SSA records has not been associated with the claims file. Accordingly, remand is also necessary to obtain the Veteran's SSA records. See 38 C.F.R. § 3.159(c)(2) (2013); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Finally, the Veteran indicated that she was provided treatment and a prescription for Prozac by a Dr. H. at the Maxwell Air Force Base (AFB) medical facility in approximately 1991 or 1992. While a record of her prescription medications from 1990 to 2000 was associated with the claims file, no additional treatment records appear to have been obtained. Thus, it remains unclear whether additional treatment records may be available. As such, on remand, an attempt must be made to obtain all of the Veteran's treatment records, between 1991 and 2000, from the medical facility located on Maxwell AFB. Accordingly, the case is REMANDED for the following action: 1. Obtain a complete copy of all documents and/or evidentiary material pertaining to the Veteran's application(s) for SSA disability benefits. All reasonable attempts must be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This determination should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002) and 38 C.F.R. § 3.159(e) (2013). 2. After obtaining any required authorization and/or necessary information from the Veteran, request records pertaining to the Veteran's treatment directly from the medical facility on Maxwell Air Force Base, in Montgomery, Alabama, between 1991 and 1992. Also, obtain any additional treatment records identified by the Veteran. Ask the Veteran to submit copies of any relevant treatment records in her possession, and inform her that she may obtain and submit identified records herself. Efforts to obtain these records must continue until they are obtained unless it is reasonably certain that they do not exist or that further efforts would be futile. If any identified records cannot be obtained, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This determination should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002) and 38 C.F.R. § 3.159(e) ( 2013). 3. Thereafter, schedule the Veteran for a new VA examination with a psychiatrist or psychologist. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner must provide an opinion as to whether the Veteran meets the DSM-IV criteria for any current psychiatric disorder, to include major depression, manic depressive disorder, schizoaffective disorder, bipolar disorder, a personality disorder, a psychosis, and PTSD; or whether she has met such criteria at any point during the pendency of her appeal (since February 2003). If the examiner disagrees with any prior psychiatric diagnosis made during the pendency of the Veteran's appeal, the examiner should reconcile this finding with evidence of any such prior diagnosis of record. The examiner should specifically provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disorder diagnosed during the pendency of the Veteran's appeal had its clinical onset during her active service or is related to an in-service disease, event, or injury. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disorder diagnosed during the pendency of the Veteran's appeal was caused (in whole or in part) by her service-connected right wrist disability. If not, the examiner should then specifically provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disorder diagnosed during the pendency of the Veteran's appeal was aggravated (permanently made worse beyond its natural progression) by her service-connected right wrist disability. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must also indicate whether it is at least as likely as not that, at any point since February 2003, the Veteran could be determined to have a valid PTSD diagnosis. If so, the stressor upon which such diagnosis is based should be identified. The examiner should specifically state whether the Veteran's PTSD diagnosis is based on a reported incident where a fellow service member was killed in a motor vehicle accident, and if so, whether the claimed stressor is adequate to support a diagnosis of PTSD and whether her symptoms are related to the claimed stressor. If a personality disorder is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not that such personality disorder was diagnosed during the Veteran's service, and if so, whether it was subject to, or aggravated by, a superimposed disease or injury during service that resulted in additional disability. If a diagnosis of a psychosis is warranted, the examiner should provide an opinion with respect to whether such psychosis was manifest within one year after the Veteran's separation from active service in January 1991, and if so, the degree of severity manifested by such psychosis within the one-year period following her separation from service. In providing these requested opinions, the examiner should specifically address the evidence of record showing that the Veteran reported suffering severe emotional distress in January 1991, before her scheduled deployment to Saudi Arabia. The examiner should additionally address her contentions of record that she was found to be undeployable due to bipolar disorder and/or manic depressive disorder, and that she was prescribed with Prozac in 1991, during service. Finally, the examiner should address the Veteran's contentions that although she did not receive specific psychiatric treatment for many years after her separation from service, she continued to suffer from psychiatric symptoms until the point where she became suicidal in 2003. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. If the VA examiner determines that a PTSD diagnosis is warranted based on the Veteran's reported incident where a fellow service member was killed in a motor vehicle accident, conduct all necessary development, including by obtaining necessary information from the Veteran, to confirm this incident. 5. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, thoroughly review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 6. Finally, readjudicate the Veteran's service connection claim on appeal. If her claim remains denied, provide the Veteran and her representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return this appeal to the Board for further appellate review. The Veteran 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. 2013). _________________________________________________ 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. See 38 C.F.R. § 20.1100(b) (2013).