Citation Nr: 1338040 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-26 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD) (claimed as a personality disorder). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from September 2000 to August 2001. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for a personality disorder. The Veteran testified at a videoconference Board hearing at the RO before the undersigned Veterans Law Judge in August 2012. A transcript of the hearing is of record. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim for service connection for a mental disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In light of this decision, the Board finds that the Veteran's claim for service connection for a personality disorder may be considered to encompass any acquired psychiatric disorder. The claim on appeal has, therefore, been recharacterized to conform to Clemons. An April 2012 rating decision denied the Veteran's September 2011 claim for PTSD and the Veteran did not initiate an appeal of the decision nor did he submit any new and material evidence with respect to the claim within the applicable one-year period. See 38 C.F.R. § 3.156(b); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). Thus, this issue is not before the Board for appellate review. The Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. 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 Board finds that further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2013). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. Id. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran contends that he developed an acquired psychiatric disorder as a result of events during active service. A September 2010 letter from a private medical professional notes that the Veteran has a current diagnosis of anxiety disorder. Private treatment records dated from February 2010 through September 2010 also indicate that the Veteran has a current diagnoses of anxiety disorder, not otherwise specified (NOS), and bipolar disorder most recent episode manic mild. A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Id. In this case, the Veteran's August 2000 enlistment physical notes that the Veteran's psychiatric condition was found to be clinically normal. In an associated report of medical history, the Veteran denied depression or excessive worry and nervous trouble of any sort. Therefore, the Veteran is considered to have been in sound condition at entry into his period of active duty. When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry and then the burden falls on the government to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that (1) the Veteran's disability existed prior to service and (2) that the preexisting disability was not aggravated during service. VAOPGCPREC 3-2003 (July 16, 2003). Generally, personality disorders, mental deficiency, mental retardation and other such "defects" are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. However, evidence of additional disability resulting from a mental disorder that is superimposed upon and aggravates a congenital defect such as a personality disorder or mental deficiency during service may be service-connected. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also VAOPGCPREC 82-90, 55 Fed Reg. 45,711; Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); and Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). The Board notes that defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). Congenital or developmental "defects" such as a personality disorder and mental deficiency automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9. There is evidence that the Veteran had a pre-existing psychiatric disorder when he entered the military. Service treatment records show that the Veteran received mental evaluations in service and was diagnosed with alcohol abuse, r/o dependence, and a provisional borderline personality disorder in August 2001. August 2001 service treatment records note that the Veteran's admitted a history of bipolar disorder and attention deficit hyperactivity disorder (ADHD) and reported seeing mental health professionals as a child and teenage. The Veteran's DD Form 214 indicates that the Veteran was discharged from active service due to a personality disorder. The August 2001 service separation physical notes that the Veteran has bipolar disorder and a personality disorder. In an associated report of medical history, the Veteran endorsed depression or excessive worry and indicated that he received treatment for bipolar disorder from fourth through ninth grade. The physician summary on the August 2001 report of medical history also indicates that the Veteran has bipolar disorder since fourth through ninth grade. The Board finds that the December 2010 VA examination report is inadequate because the VA examiner opined only as to whether it is at least as likely as not that the Veteran's current psychiatric disorder was a progression to the incident of personality disorder noted in service and did not opine as to whether any diagnosed acquired psychiatric disorder was incurred in or caused by active service or as to whether any pre-existing psychiatric disorder had been aggravated during service. Thus, the Board finds that an additional VA examination is necessary as there remains some question as to whether the Veteran's psychiatric disorder was incurred in or worsened due to his military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, it appears that the Veteran has been awarded disability benefits by the Social Security Administration (SSA) and, while the Veteran's SSA file was previously obtained in electronic disc format, the evidence was damaged and cannot be read. As the Board cannot determine the basis for the award from the current evidence of record, it cannot rule out a reasonable possibility that the SSA records are relevant to the Veteran's current claims on appeal. Accordingly, a remand is necessary to obtain the records. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that has a duty to obtain SSA records where a reasonable possibility exists that the records are relevant to the Veteran's claim); 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. Obtain from the SSA a copy of its decision(s) awarding the Veteran disability benefits, as well as copies of all medical records underlying that determination. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Then, schedule the Veteran for a VA examination to obtain an opinion as to the nature and etiology of any acquired psychiatric disorders. The claims folder should be made available to the examiner. The examiner should provide a clear rationale and basis for all opinions expressed. The examiner should diagnose all Axis I and II psychiatric disorders. The examiner should address the November 2010 private report which includes diagnoses of bipolar disorder and generalized anxiety disorder. For any current diagnosed psychiatric disorder other than a personality disorder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that any Axis I psychiatric disability was incurred in or caused by the Veteran's military service. The examiner should also provide an opinion as to whether any of the diagnosed psychiatric disorders other than a personality disorder clearly and unmistakably pre-existed service and, if so, whether the evidence is clear and unmistakable that it was not aggravated during, or as a result of, his service. If aggravation is found, the examiner should address whether the permanent increase in severity was due to the normal progression or the disorder, whether such worsening constituted chronic aggravation of the disorder due to service, or whether the personality disorder was aggravated by service thereby resulting in a superimposed acquired psychiatric disability. (Note: aggravation connotes a permanent worsening above the base level of disability, not merely acute and transitory increases in symptoms or complaints.) 3. Then, readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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. 2013). _________________________________________________ K.J. ALIBRANDO 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).