Citation Nr: 1337013 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-41 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder. WITNESSES AT HEARINGS ON APPEAL Appellant and R.H. ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from July 1987 to July 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran and R.H. provided testimony before a VA Decision Review Officer (DRO) in May 2011, and before the Board in May 2012. Transcripts of these hearings are of record. The Veteran initially submitted a claim for service connection for bipolar disorder. However, the evidence of record also indicates the Veteran has been diagnosed with a number of other acquired psychiatric disorders. VA must consider alternate psychiatric disorders within the scope of an initial claim for service connection for a specific psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In other words, a claim of entitlement to service connection for a psychiatric disorder includes any mental disability that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Id. As such, in light of the Court's holding in Clemons, the Board has amended the issue on appeal as reflected above. 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 filed a claim of service connection for aggravation of bipolar disorder, and has testified before both a VA Decision Review Officer (DRO) and before the Board that he was diagnosed with a psychiatric disorder during childhood, and experienced increasing symptomatology during his period of active service. Initially, however, the Board observes the Veteran's February 1987 entrance examination notes a normal psychiatric evaluation. For purposes of service connection pursuant to 38 U.S.C.A. § 1110, every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). In considering whether the presumption of soundness applies in the instant case, the Board again notes the Veteran's entrance examination notes no psychiatric abnormalities upon service entrance. However, given the Veteran's testimony regarding a preexisting psychiatric diagnosis, a VA examination is necessary to determine whether there is clear and unmistakable evidence that the Veteran's current psychiatric disorder(s) both (a) preexisted active service and (b) was not aggravated by such service. See Wagner, supra. In addition, the Veteran testified that his superiors in the Army knew of his in-service symptomatology and had a closed-door meeting on at least one occasion. See Board hearing transcript at 6. It is possible that documentation of such a meeting, or potentially other comments regarding the Veteran's behavior during service, may be located in his service personnel file, which has not yet been obtained. Finally, the Veteran testified that he is currently in receipt of treatment from a number of VA mental health providers. See Board hearing transcript at 12-13. Records related to such treatment have not been associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). On remand, all outstanding VA treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's entire Official Military Personnel File (OMPF) from the National Personnel Records Center (NPRC) in St. Louis, Missouri, or other appropriate source. 2. Obtain any outstanding VA records for treatment at VA facilities. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. 38 U.S.C.A. § 5103A(b) 38 C.F.R. § 3.159(c)(2) (2012). 3. Following completion of the above, schedule the Veteran for a VA examination to determine the nature and etiology of any current acquired psychiatric disorder. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished. After reviewing the record and examining the Veteran, the examiner should provide a current diagnosis of any acquired psychiatric disorder. The examiner should then provide an opinion regarding the following: a. Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the Veteran had an acquired psychiatric disorder that existed prior to his entry intro active service? b. If the answer to (a) is yes, does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the preexisting acquired psychiatric disorder was not aggravated by service or that any increase in disability was due to the natural progression of the disorder? Please identify the nature of the condition that preexisted service and discuss in detail the evidence relied upon in reaching these conclusions. c. If the answer to either (a) or (b) is no, is it at least as likely as not (probability of at least 50 percent) that the Veteran's current acquired psychiatric disorder is etiologically related to his active service? A complete rationale must be provided for all opinion(s) expressed. The examiner is advised that laypersons are competent to report symptoms and treatment, and that their reports must be taken into account in formulating the requested opinions. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he should be provided with a supplemental statement of the case. 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). _________________________________________________ S. L. Kennedy 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).