Citation Nr: 1325782 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 11-00 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a disability claimed as left hand arthritis. 2. Entitlement to service connection for a disability claimed as right hip arthritis. 3. Entitlement to service connection for a disability claimed as left hip arthritis. 4. Entitlement to service connection for left foot arthritis. 5. Entitlement to service connection for Hepatitis C. 6. Entitlement to service connection for right hand arthritis. 7. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1972 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues on appeal at that time were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). Bryant v. Shinseki, 23 Vet. App. 488 (2010). The case was remanded by the Board in May 2012 for additional development. The requested development as to the issues that are being decided in this decision has been substantially completed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). The issues of entitlement to service connection for an acquired psychiatric disorder and right hand arthritis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACTS 1. Left hand, bilateral hip, and left foot disabilities are not shown to have been incurred during or as a result of an established event, injury, or disease during active service. 2. Hepatitis C is as likely as not due to willful misconduct, intravenous drug abuse, in service. CONCLUSIONS OF LAW 1. The Veteran does not have a chronic bilateral hip disability due to disease or injury incurred in or aggravated by his active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The Veteran does not have a chronic left hand disability due to disease or injury incurred in or aggravated by his active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The Veteran's left foot disability was not incurred in or aggravated by his military service and osteoarthritis may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 4. Hepatitis C was not incurred in active service. 38 U.S.C.A. §§ 105(a), 1110, 5107 (West 2002); 38 C.F.R. §§ 3.1 and (n), 3.301(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist and Notify VA has duties to notify and assist the Veteran in substantiating these claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was provided notice of the VCAA in August and October 2008. The VCAA letters indicated the types of information and evidence necessary to substantiate the claims, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. In these letters, the Veteran also received notice pertaining to the downstream disability rating and effective date elements of his claims. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records (STRs), private medical records, VA outpatient treatment reports, adequate VA examinations and opinions as well as statements from the Veteran and his representative. This case was previously remanded by the Board in May 2012 to provide the Veteran with adequate VA opinions for his claimed disabilities. The Board notes that March 2013 VA examination reports and opinions reflect that the examiners reviewed the Veteran's past medical history, documented his current medical conditions, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Consequently, the Board concludes that the medical examinations and opinions are adequate for adjudication purposes. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103. II. Pertinent Laws and Regulations Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to direct service connection for the claimed disability, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for certain chronic diseases (such as arthritis) when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a listed chronic disease (under 38 C.F.R. § 3.309(a) manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology analysis is applicable in cases involving conditions explicitly recognized as chronic diseases under 38 C.F.R. § 3.309(a)). Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 3.303(a). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. III. Service Connection for Chronic Left Hand and Bilateral Hip Disabilities As explained, the most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent medical evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). In this regard, the Veteran has neither provided nor identified any medical evidence showing current diagnoses of the claimed disorders. A review of his STRs, as well as his VA treatment records does not show confirmed diagnoses of any hip or left hand disorder of any sort. Post-service VA outpatient records show that in August 2009 he complained of multiple joint pains, and arthritis was suspected. However, diagnostic testing (including Rheumatology consultation and radiological studies) failed to confirm such a diagnosis. Moreover, VA examinations were conducted in March 2013 and the VA examiner was unable to diagnose either bilateral hip or left hand disorders. And he has only claimed service connection for vaguely unidentifiable disabilities. He is competent, even as a layman, to proclaim for example having experienced pain in his hips or left hand. Indeed, he is even competent to make this proclamation absent any supporting contemporaneous medical evidence such as treatment records. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). But his lay testimony concerning this also must be credible to ultimately have probative value. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). And his mere complaint of pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285. Moreover, he is not claiming a specific type of condition that would readily lend itself to lay diagnosis or comment on etiology, such as would be the case if his claim, instead, was for a separated shoulder, broken leg, pes planus (flat feet), varicose veins, tinnitus, etc. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno, 6 Vet. App. at 469. See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. at 494-97. See also Barr v. Nicholson, 21 Vet. App. 303 (2007). For these reasons and bases, the Board rejects the Veteran's unsubstantiated lay statements as competent and credible evidence sufficient to establish the required current diagnosis of either a chronic left hand disability or bilateral hip disability or to suggest an association between any claimed but unsubstantiated disabilities and his military service. See Colantino v. Shinseki, No. 2009-7067, 2010 WL 2163002 (Fed. Cir. June 1, 2010); Johnson v. Shinseki, No. 2010-7060 (Fed. Cir. June 10, 2010). Consequently, the Board finds that the preponderance of the evidence is against the claims for service connection for left hand and bilateral hip disabilities and, as such, must be denied. 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). IV. Service Connection for Chronic Left Foot Arthritis The Veteran has the required current diagnosis to account for his complaints of left foot pain. More specifically, a March 2013 VA X-ray report noted degenerative joint disease (DJD) of the left first metarsophalangeal (MTP) joint. Regarding what occurred in service, the Veteran contends that he has a left foot disability due to the physical training he incurred during his 3 years in the military, which included running up to 40-50 miles daily. He indicated that he is a member of the 500 mile club. The Veteran's STRs do not show any complaints, findings, or diagnosis regarding a left foot injury. Further, the March 1975 discharge examination report indicates that his musculoskeletal system was considered normal. At this examination, not only did the Veteran failed to report a history of a left foot injury but he reported that besides a viral upper respiratory infection, he was in good health. Although there is no specific objective evidence of an in-service injury, the Veteran's report of training is consistent with the circumstances of his military service. 38 U.S.C.A. § 1154(a) (West 2002). Therefore, the Veteran meets the first (current disability) and second (in-service injury) requirements of the Shedden analysis. Unfortunately, however, in this particular instance the most probative-meaning competent and credible-evidence is against this claim for a left foot disability. The March 2013 VA physician found that it was less likely than not that the left foot disability was related to military service. He noted that STRs were negative for any complaints or treatment for a left foot injury. He considered the Veteran's account of his left foot disability but found his reports of pain, vague and without details, such as functional impact. The examiner considered this was not consistent with the medical record. Especially since there was no report of a foot injury during service. The examiner further noted that the Veteran did not complain of foot problems when examined during the 2009 VA Rheumatology evaluation. He found the Veteran's history in regard to the onset of left foot pain unclear, in that, he was unable to give details as to when specific symptoms started. He reiterated that there was no report of a foot injury at his March 1975 separation examination. Besides the unfavorable opinion the Board also notes that in reviewing his post-service history, there are no medical records reflecting complaints, diagnosis, or findings, related to a left foot disability until he applied for benefits in 2009, so not until nearly 24 years (i.e., over two decades) after the Veteran's military service ended. There is certainly no evidence showing that he had osteoarthritis within a year of service discharge, let alone to a degree of 10 percent disabling. The Veteran has stated that he did not seek treatment for his left foot pain and self-medicated with marijuana and alcohol. The Board notes that it cannot conclude lay evidence lacks credibility simply because it is unaccompanied by any contemporaneous medical evidence, such as treatment records. But that said, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board therefore may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, though not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Although the March 2013 VA compensation examiner acknowledged the Veteran's in-service training, he just ultimately concluded that the Veteran's degenerative disease was not a consequence. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, in regard to the Veteran statements that he has experienced left foot pain rather continuously since service, not only has to be competent but also credible. See Rucker, supra. And, again, this determination is not just based on his written statements submitted at times during the course of his appeal, but also in light of and in relation to the other evidence in the file addressing this issue. The Board took into consideration not only his current arguments regarding the onset and severity of his left foot pain, but his past statements and clinical records. For instance, the Board notes that when receiving VA outpatient psychiatric treatment in 1998, there was no mention of problems with his feet or any other joint. Essentially, the Board finds the Veteran's statements regarding in-service injury competent and credible. In regards to his post-service history of left foot pain the Board finds that he is competent to report continuing pain, but not credible, as far as diagnosing a chronic left foot disability and relating it to service. The VA examiner took in consideration his statements regarding continuing post-service left foot pain, nevertheless, still found his current left foot condition unrelated to military service. The Board gives greater probative weight to the report and opinion of this evaluating VA physician because of the consideration of the Veteran's pertinent medical and other history-as accomplished by reviewing the evidence in the claims file, but more so based on the discussion of the underlying rationale of the opinion, which instead is where most of the probative value is derived. See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008) (indicating "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). This examiner also has medical expertise, which is another relevant consideration adding to this opinion's greater probative value. Moreover, this examiner's opinion is mostly supported by the other evidence of record, which, as mentioned, does not show any earlier indication of osteoarthritis or DJD, either in the way of a relevant subjective complaint or objective clinical finding such as a pertinent diagnosis. There also is no medical opinion in the file refuting the VA examiner's unfavorable opinion, and the Veteran's lay statements are insufficient to rebut this opinion given their lessened probative value. Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. For these reasons and bases, the evidence is not in relative equipoise, meaning not about evenly balanced for and against the claim. Instead, the preponderance of the evidence is unfavorable, so the claim must be denied. V. Service Connection for Hepatitis C In statements and testimony presented throughout the duration of the appeal, the Veteran has maintained that his Hepatitis C is related to his active service. VA Fast Letter 04-13, June 29, 2004, which addresses claims for service connection for Hepatitis C indicates key points including the fact that Hepatitis C is spread primarily by contact with blood and blood products, with the highest prevalence of Hepatitis C infection among those with repeated, direct percutaneous (through the skin) exposure to blood (i.e., intravenous drug users, recipients of blood transfusions before screening of the blood supply began in 1992, and hemophiliacs treated with clotting factor before 1987). Another key point noted is the fact that Hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture. The Fast Letter indicates that the large majority of Hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. It also notes however, that transmission of Hepatitis C virus with body piercings. Considering the first element of the Shedden analysis, evidence of current disability, the Veteran was initially seen at a VA facility in June 2009 for mental health issues. Serology testing was performed in August 2009 which revealed a positive reaction for the Hepatitis C antibody. The Veteran reported that he has known of this diagnosis since serving time in prison 10-15 years, previously. In regard to the second element of Shedden, in-service incurrence, service treatment records are absent of any findings of Hepatitis C. The reports of a March 1972 enlistment examination revealed normal findings of the abdomen and viscera upon clinical evaluation, and the Veteran reported that he did not have a prior history of such symptoms as jaundice or a history of hepatitis in the Report of Medical History. A March 1975 separation examination revealed normal findings of the abdomen and viscera upon clinical evaluation and the Veteran again reported that he did not have jaundice or hepatitis in the Report of Medical History. He also denied that he had any stomach, liver, or intestinal trouble. However, the Veteran reports that he was exposed to high risk activities for hepatitis including intravenous heroin use and frequent unprotected sex. He also asserts that he may have contracted hepatitis from his in-service wrist surgery. While the objective evidence is negative regarding any findings referable to hepatitis; his lay statements regarding the type and extent of his possible exposure in service are competent and consistent with the circumstances, conditions and hardships of his service to have probative value and warrant conceding being exposed to these types of risk factors in service. 38 U.S.C.A. §§ 1154(a) and (b); 38 C.F.R. § 3.304(d). The VA examiner in March 2013 reviewed the Veteran's claims file, VA clinical records, and the Veteran's statements. It was concluded that Hepatitis C was likely a result of his intravenous use of heroin during service. The examiner noted that the Veteran was involved in intravenous use of heroin from 1973-1975 and in 1987 (cocaine use). The physician added that the hazard of contracting hepatitis is 50 times greater for persons engaged in such high risk activity than for a person who has no risk factors. Moreover, his chances were also increased with his reported unprotected sex. In regard to the Veteran's risk of contracting hepatitis C during the one surgical procedure that occurred during service was no more of a risk than a person who had no risk factors. In considering the Veteran's claim, the evidence of record establishes that his current Hepatitis C infection was, at least as likely as not, acquired during active service. The Veteran provided testimony suggesting that his hepatitis was possibly caused by sexual activity. He described his in-service sexual activity as "prolific." We observe that high risk sexual activity is a risk factor for Hepatitis C and that the Veteran acknowledged that sex was pervasive during his military service. However, the evidence of record clearly demonstrates another high risk activity for hepatitis, which is intravenous drug use. The self-reported history (at the March 2013 examination) provided by the Veteran shows that he began using heroin intravenously in service during his first year in service in Okinawa, Japan from 1973 to 1974. He also had a 40 year history of alcohol abuse that resulted in DUI citations and incarceration. The Board does note, however, that in 1998 VA treatment records the Veteran reported drinking at age 16, marijuana use at age 17, LSD use between the ages of 20 and 24, intravenous heroin use in 1985, and intravenous cocaine use from 1986 to 1998. Notwithstanding the earlier reported history, the Veteran is competent to report his behavior and the report of intravenous drug use beginning in service is also credible in view of the consistency of the Veteran's report of drug use in service. The Board finds the history repeated at his various admissions highly probative of his high risk activity as an intravenous drug user in service. Also, the VA medical opinion in March 2013 reflects that the current Hepatitis C infection is "at least as likely as not" caused by intravenous drug use in service. In view of the medical opinion and the absence of convincing evidence of an alternative source of the hepatitis infection, the Board finds that the Veteran's hepatitis C was caused by drug use, most likely beginning in service. Notwithstanding the purported relationship of hepatitis to service, the claim must be denied. Because drug abuse in service is the likely cause of hepatitis in service there is no entitlement under the law. In this regard, VA compensation will generally not be paid if a claimed disability was the result of a veteran's own willful misconduct or his/her abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1131 (West 2002); 38 C.F.R. §§ 3.1(n) , 3.301(c) (2012). A preponderance of the evidence supports a finding of drug abuse. Smith v. Derwinski, 2 Vet. App. 241, 244 (1992). In this regard, although drug use is not shown in the service treatment records, the self-reported history by the Veteran is both competent and credible, and sufficient to overcome any absence of contemporaneous documentation of drug abuse in service. Therefore, compensation is precluded. Accordingly, the claim must be denied as a matter of law. 38 U.S.C.A. § 1110. ORDER Service connection for a bilateral hip disability is denied. Service connection for a left hand disability claimed as arthritis is denied. Service connection for a left foot disability is denied. Service connection for Hepatitis C is denied. REMAND As noted above, in May 2012, the remaining issues were remanded by the Board to obtain medical opinions regarding whether the Veteran's claimed disorders were related to military service. A series of examinations were conducted in March 2013. Regarding his right-hand disability, in providing an opinion, the VA examiner indicated that the Veteran did not complain of or receive treatment for a right hand disability during his military service. However, in reviewing the STRs, the Board notes that in August 1973, he received medical care for a right hand football injury. The Board is unable to make a determination when a medical opinion is based on an incorrect history. Therefore additional medical comment is needed. Concerning his claim for a psychiatric disorder, in reviewing the STRs, a clinical notation indicates that the Veteran underwent a psychological evaluation in January 1974. This note refers to a narrative summary, which is not of record. Although the RO obtained STRs, which include some Mental Health Clinic notations, it is unclear whether additional records are available. Mental health records are often held separate from the service treatment records folder. The M21 manual indicates that in-service mental health treatment records are separate from the general service treatment records and, therefore, must be requested separately. See VBA's Adjudication Procedure Manual, M21-1MR, III.iii.2.A.1. Because the Veteran, in his claim, asserts that his current mental disorder began during service, evidence of in-service mental health treatment is particularly important in this case. Under 38 C.F.R. § 3.159(c)(2), VA has a duty to assist the Veteran by obtaining records such as these, which are in the hands of a Federal department or agency. Thus, while the Board regrets the delay, a remand is again required. In the May 2012 decision, the Board requested VA examination in order to determine the etiology of the variously diagnosed psychiatric disorders. A VA examination was conducted in May 2013. The post-service diagnoses include personality disorders, not otherwise specified (NOS). Generally speaking, a personality disorder may not be service connected as a matter of express VA regulation. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012). The only possible exception is if there is additional disability due to aggravation of the personality disorder during service by superimposed disease or injury. Therefore, where the Veteran has been diagnosed, in part, with a personality disorder, as is the case here, the issue becomes whether there is any superimposed chronic pathology which was present during active duty that resulted in current disability. While the VA examiner comprehensively commented on the Veteran's acquired psychiatric disorders, there are no remarks regarding whether there was superimposed chronic pathology concerning his personality disorder. Therefore, an opinion is needed as to whether his personality disorder was subject to, or aggravated by, a superimposed disease or injury during service that resulted in additional disability. A June 2009 VA outpatient record relates that the Veteran was receiving psychiatric care in conjunction with Porter Hospital. There are no records from Porter Hospital associated with the claims file. The AMC/RO should attempt to obtain these records with the help of the Veteran. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request the Veteran to update the list of the physicians and health care facilities that have treated him for his psychiatric and right hand disorders on appeal. The AOJ should obtain any additional medical treatment records (i.e., those not already in the file) identified by the Veteran. The records should include the records from Porter Hospital that are referenced in his June 2009 VA treatment. The Veteran's assistance in obtaining these records, including providing any necessary authorizations, should be enlisted as needed. If the attempts to obtain these additional records are unsuccessful, and it is determined that further attempts would be futile, document this in the file and notify the Veteran. 2. Contact the National Personnel Records Center and request any separately stored mental health clinic records associated with the Veteran's treatment in January 1974 at the Regimental Dispensary 3d Force Regiment FPO San Francisco, California. 3. After obtaining any identified records, the AOJ should forward the claims file to the examiner who performed the March 2013 examination (or a suitable substitute if this individual is unavailable) for an addendum. If the examiner cannot offer the requested opinion without examining the Veteran, he should be scheduled for an appropriate VA examination. The examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's personality disorder was subject to, or aggravated by, a superimposed disease or injury during service that resulted in additional current psychiatric disability. If so, please identify the additional disability. Whoever is designated to provide this additional comment must discuss the rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file. To facilitate providing this additional comment, it is imperative the designated examiner review the claims file, to include this Remand, for relevant medical and other history. 4. If still available, forward the claims file to the March 2013 VA compensation examiner (for the Veteran's right hand disorder) to have this examiner provide supplemental comment regarding his opinion that it is less likely than not the Veteran's current right hand disability is related to his military service. In making these necessary determinations, the examiner must consider the Veteran's January 1974 treatment for a right hand injury. In particular, the examiner should articulate his reasons supporting his conclusion. If, for whatever reason, it is not possible or feasible to have this same VA examiner provide this further comment, then have another equally qualified examiner provide this necessary additional medical opinion. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed to make this determination of causation. Whoever is designated to provide this additional comment must discuss the rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file. To facilitate providing this additional comment, it is imperative the designated examiner review the claims file (or, in the case of the prior examiner, refamiliarize himself with the pertinent evidence in the claims file) for the relevant medical and other history. This review includes considering this remand and the Board's prior remand. If reexamination is necessary, the Veteran is hereby advised that failure to report for this scheduled VA examination, without good cause, may have detrimental consequences on these pending claims. 38 C.F.R. § 3.655. 5. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). (Continued on the next page) These claims 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 Department of Veterans Affairs