Citation Nr: 1340876 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 09-49 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from May 1966 to February 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In October 2010, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. In May 2011, the Board reopened the Veteran's previously denied claim for service connection for an acquired psychiatric disability, and remanded the claim for additional development. In April 2013, the Board again remanded the claim. The case has been returned to the Board and is ready for further review. 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 Reasons for Remand: to obtain an addendum opinion The record shows that in May 2013, the Veteran underwent a VA psychiatric examination. The examiner found that the Veteran had dysthymic disorder and noted that this is a chronic depressive disorder complicated by dysphoria, secondary to Axis II. The Axis II diagnosis was personality disorder. The examiner opined that the Veteran had a personality disorder in service and that he did not have an Axis I disorder, specifically that he did not suffer bipolar disorder. However, the examiner did not provide an opinion as to the etiology of the diagnosed dysthymic disorder. Further, on review, the Board notes that there is evidence of current psychiatric disability. The Veteran noted at service entrance in January 1966 that he had a history of depression or depressive disorder and during service he was diagnosed with a passive aggressive personality. He noted at separation that he had a history of depression or excessive worry. Congenital or developmental defects such as personality disorders are not "diseases" or "injuries" within the meaning of applicable legislation, and therefore service connection for them is generally precluded by regulation. 3 8 C.F.R. §§ 3.303(c), 4.9, 4.127. This is because defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90. In fact, congenital or developmental "defects" such as 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. See also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). However, a mental disorder that is superimposed upon a personality disorder during service may be service connected, even though the underlying personality disorder is not. 38 C.F.R. § 4.127; see also VAOPGCPREC 82-90. This has not been addressed by the VA examiner. Under the circumstances of this case, the Board finds that a VA addendum opinion is needed. See 38 C.F.R. § 3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Return the file to the May 2013 VA examiner for an addendum opinion. If that examiner is not available refer the file to a qualified examiner for the requested opinion. The claims folder must be available for review by the examiner. Additionally, all relevant medical records must be made available to the examiner for review, either in the Virtual VA eFolder, or if the eFolder is not available, then via paper copies. The examiner is requested to state whether it is at least as likely as not that the currently diagnosed psychiatric disorder is related to the Veteran's active military service or events therein. In making this determination, the examiner is requested to discuss the in-service diagnosis of a personality disorder and address whether there is any evidence of a superimposed psychiatric disorder. The examiner should indicate if there is a proximate connection between the personality disorder treated in service and the currently diagnosed dysthymic disorder. In this regard, the examiner should 1) identify the Veteran's current acquired psychiatric disorder(s); (2) provide an etiological opinion relating such disorder(s) to military service, to include the Veteran's in-service symptomatology and diagnosis of a personality disorder; and (3) provide an opinion as to whether the Veteran had any additional psychiatric disorders superimposed on his s personality disorder in service. A complete rationale for any opinion expressed should be provided. 2. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).