Citation Nr: 1337516 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-48 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a compensable acquired psychiatric disability. ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from October 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of July 2010, which denied service connection for posttraumatic stress disorder (PTSD). VA treatment records show that the Veteran has been diagnosed as having other compensable acquired psychiatric disorders, including bipolar disorder and major depressive disorder; as a result, the issue, as set forth on the title page, has been expanded to include service connection for any acquired psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (Court held that Veteran is not competent to diagnose his various conditions, in concluding, in a case involving service connection for PTSD when the record showed diagnoses of other mental conditions, that such conditions were part of the claim). 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 issue of service connection for PTSD was denied by the RO on the basis that although VA treatment records showed a diagnosis of PTSD, corroboration of his claimed stressor of having been assaulted by another soldier was not of record, and he had failed to submit corroboration, or other information which would enable VA to verify the stressor. As indicated above, although the appeal has been developed solely on the issue of service connection for PTSD, the record also shows that the Veteran has been diagnosed as having other psychiatric conditions throughout the appeal period. Specifically, he has been diagnosed as having polysubstance abuse, substance-induced mood disorder, personality disorder, mood disorder due to medical condition, bipolar disorder, major depressive disorder, and attention deficit hyperactivity disorder (ADHD). However, service connection cannot be established for personality disorders, as such are not diseases or injuries for VA compensation purposes. 38 C.F.R. § 3.303(c). Likewise, service connection cannot be established for a psychiatric disorder resulting from the primary abuse of alcohol or drugs. 38 U.S.C.A. §§ 105(a), 1110; 38 C.F.R. §§ 3.1(m), 3.301; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Here, the RO denied service connection for substance-induced mood disorder and polysubstance dependence in a March 2010 rating decision, and the Veteran did not appeal that determination. For these reasons, the issue has been characterized as entitlement to service connection for a compensable, acquired psychiatric disorder to reflect its limitation to issues for which there is a legal basis for service connection, if the criteria are met. As noted, VA treatment records dated from 2009 to 2011 show diagnoses of acquired psychiatric disabilities, predominantly bipolar disorder. However, the Veteran was afforded a VA examination in March 2010, which resulted in diagnoses of substance induced mood disorder and polysubstance dependence, in partial remission, and a personality disorder. The Board notes that personality disorders are not disabilities for which service connection may be granted. See 38 C.F.R. § 3.303(c) (preservice disabilities noted in service); and 38 C.F.R. § 4.9 (congenital and developmental defects). Nevertheless, service connection may be granted if the evidence shows that a psychiatric disability was incurred or aggravated in service and superimposed upon the preexisting personality disorder. 38 C.F.R. §§ 4.9, 4.125(a), 4.127; Carpenter v. Brown , 8 Vet. App. 240 (1995); Beno v. Principi, 3 Vet. App. 439 (1992). While the March 2010 VA examination report provided some discussion as to why it is believed the Veteran had a personality disorder, this conflicts with the findings of the treating VA mental health providers, which includes at least one psychiatrist, and who are familiar with the Veteran's mental state because they see him regularly. The March 2010 examiner did not provide adequate explanation as to why the Veteran's treating mental health providers were incorrect in diagnosing psychiatric disorders rather than a personality disorder. Moreover, one of the requirements of service connection - current disability - is satisfied if the claimant has the disability at any time during the pendancy of the claim. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, for purposes of the claim, the determination of whether there has been an accurately acquired psychiatric disability diagnosed during the appeal period is of significant importance. There is also a question of service pre-existence that may have to be considered if an acquired psychiatric disability is found to have been present in service. In this regard, in December 1972, the Veteran's mother provided the military with a list psychologists who had treated the Veteran before service, from 1964 to 1969, but there is no indication of what condition had been treated. The VA examiner in March 2010 stated that the Veteran "exhibited a pre-existing mental disorder prior to service." The examiner attributed the Veteran's difficulty with jobs and illicit drugs to his personality disorder. As it is unclear whether the Veteran actually suffers from an acquired psychiatric disorder as opposed to a personality disorder. the evidence is not sufficient to rebut the presumption of soundness, which requires, first, clear and unmistakable evidence of pre-existing "disability." 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). To the extent there is a pre-existing personality disorder, the issue would not turn on the presumption of soundness, but rather whether there has been aggravation due to a superimposed disease or injury. 38 C.F.R. § 4.127. But to the extent the presumption of soundness applies to this case, the presumption is only at issue only when a disease or injury manifests in service, and a question arises as to whether it pre-existed service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012). Thus, if the condition was not shown in service, the presumption of soundness need not be addressed. Here, the Veteran reported feeling "depressed" on two occasions in May 1972, which the VA examiner attributed to his personality disorder. However, as has been mentioned, this examiner did not adequately discuss in his opinion the VA mental health clinic records diagnosing the Veteran with acquired psychiatric disabilities. Given the foregoing, the Board finds that an opinion should be obtained concerning whether the Veteran has an acquired psychiatric disability of service onset or aggravation. Because his treating psychiatrist is familiar with his psychiatric condition, the Board believes that he is best qualified to provide such an opinion, and should be requested to do so, if available. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records dated from March 2011 to the present, which show treatment for, or evaluation of, psychiatric or mental health conditions. 2. Forward the claims file to the Veteran's VA treating psychiatrist, if available, (or, if he is not currently receiving psychiatric treatment, the most recent available treating psychiatrist; or other psychologist or psychiatrist) to reconcile the conflicting diagnoses and for an opinion as to the following: * What has been the prevalent or dominant psychiatric diagnosis of diagnoses during the entire pendancy of the appeal, from July 2009. More specifically, has the Veteran suffered from a psychiatric disability or a personality disorder, or both? Why or why not? * If you determine that the Veteran does suffer from a psychiatric disability, is it at least as likely as not (50 percent or greater probability) that an acquired psychiatric disability was present while the Veteran was on active duty? Why or why not? * If so, is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that any such acquired psychiatric disability was present prior to his entry into active duty service? Why or why not? * If so, is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that such disability did not undergo a chronic or permanent increase in severity during service beyond the natural progression of the disease? Why or why not? * Alternatively, if it is determined that the Veteran had a personality disorder that pre-existed entry into service but now has a psychiatric disability, is there now additional disability due to aggravation of the personality disorder by superimposed disease or injury sustained in service? Why or why not? A rationale for all requested opinions shall be provided, with citation to medical treatise, studies, etc., if appropriate. If you cannot provide an opinion without resorting to mere speculation, please provide a complete explanation stating why this is so. In so doing, you must explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that you have exhausted the limits of current medical knowledge in providing answers to the questions 3. Then, the RO/AMC should adjudicate the claim for entitlement to service connection for a compensable, acquired psychiatric disability, to include bipolar disorder, in light of all evidence of record. If the claim is denied, the Veteran should be furnished a supplemental statement of the case, and afforded an opportunity to respond, before the appeal is returned to the Board. 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). _________________________________________________ JONATHAN B. KRAMER 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).