Citation Nr: 1756563 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-18 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure and/or as secondary to an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Timothy Hiller, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from October 1969 to October 1970. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In January 2016, the Veteran presented sworn testimony during a video conference hearing in Buffalo, New York, which was chaired by the undersigned. A transcript of that hearing has been associated with the claims file. In December 2016, the Board remanded the appeal for additional development. It is once again before the Board. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In December 2016, the Board remanded the appeal for medical opinions to address the etiology of any acquired psychiatric disorders and diabetes mellitus. Specifically, the Board directed that: The Veteran's claims file should be provided to an appropriate VA examiner(s) (preferably not the April 2014 examiner) for medical opinions related to her psychiatric claim and her [diabetes mellitus] claim. The examiner(s) must review the claims file and the examination report must reflect that such a review was conducted. The examiner(s) should opine: a. whether it is at least as likely as not that any of the Veteran's current psychiatric disabilities began in or are related to service. The examiner is advised that the evidence does not establish a preexisting psychiatric disorder on entrance to service. The examiner must specifically address the Veteran's inservice suicide attempts and psychiatric treatment and indicate whether these were signs of a psychiatric disorder that was present in service. b. whether it is at least as likely as not that the Veteran's diabetes mellitus is aggravated by her psychiatric condition, specifically whether the binge eating impacts her ability to control her diabetes. In January 2017, a VA psychologist indicated that the Veteran's current disabilities consisted of borderline personality disorder, alcohol dependence in sustained remission, other recurrent depression and unspecified anxiety. She stated that the primary diagnosis was borderline personality disorder but that the unspecified anxiety and depression may be seen as part of the primary diagnosis of borderline personality disorder. She further noted that all current diagnoses were comorbid, interacting with one another and making each other worse. As to the etiology of these disorders, the examiner opined that the claimed conditions were not related to service but rather were manifestations of her personality disorder. The suicide attempts were merely "suicide gestures" and were consistent with the impulsive self-mutilative behavior and ineffective mood regulation typical of those with personality disorders. The examiner added that the current diagnoses of unspecified anxiety and unspecified depression were further evidence of chronic emotion dysregulation but not acquired psychiatric disorders caused by her military experience. In addition, in January 2017, a VA nurse practitioner concluded that it was less likely than not that her diabetes was proximately due to or the result of her acquired psychiatric disorders. He noted that the Veteran reported that prior to March 2016, she used to binge eat several times per week but now, with the assistance of her psychiatrist, such events only occur once or twice a month. The examiner reasoned that binge eating a couple times per month would not have any long-lasting detrimental effect on her overall diabetes status. In February 2017 correspondence, the representative argues that the above examinations did not comply with the prior remand directives. First, the representative contends that the Board told the examiner that there was no preexisting psychiatric disorder noted upon entrance but the examiner concluded that the Veteran's suicide attempts and in-service psychiatric treatment were the result of a personality disorder which is by definition preexisting. Second, the representative contends that "the Board specifically directed [the AOJ] to have the same VA examiner that offered an opinion as to [the Veteran's] psychiatric disorder to offer an opinion" regarding diabetes, however, two different examiners offered opinions on these issues. As to the latter argument, as shown above, the Board requested that opinions be obtained from "an appropriate VA examiner(s)." There is no indication that the Board required that both opinions be from the same person, and the Board's use of the parenthetical suggests that such opinions might require the expertise of more than one examiner. Indeed, it is not clear why a psychologist would be an appropriate person to evaluate an endocrine disorder. As to the former argument, there is similarly no indication that the Board intended to preclude the examiner from considering the possibility that a personality disorder, or other preexisting disorder, was responsible for some or all of her psychiatric symptoms. Where no defect is noted upon entrance, the presumption of soundness applies. The presumption of soundness does not imply, however, that one may never conclude that there was a preexisting disorder; indeed it is merely a presumption. See 38 U.S.C.A. § 1111 (West 2014). The Board agrees, however, that the above opinions require further clarification. In this regard, service connection for a personality disorder may be granted where the disorder was subject to a superimposed disease or injury during service that resulted in additional disability. See VAOPGCPREC 82-90 (July 18, 1990); see also Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). While the examiner has indicated that the diagnoses of depression and anxiety are interrelated with the personality disorder, the exact relationship between these disorders is not clear. As to diabetes, the examiner there concluded that the psychiatric disorders did not cause diabetes but he did not address whether they aggravated the disease as the prior Board remand inquired. In addition, the examiner's rationale was based on the Veteran's recent habit of binge eating only a couple of times per month even though she reported that prior to March 2016, she binge-ate several times per week. Accordingly, the case is REMANDED for the following action: 1. Forward the entire claims file in electronic records and a copy of this remand to the authors of the January 2017 VA opinions or other appropriate VA examiner for addendum opinions. If examination is indicated, it should be scheduled in accordance with applicable procedures. (a) Regarding the personality disorder, the examiner should state whether there was a superimposed disease or injury that occurred during service. In answering this question, the examiner should address the relationship between the personality disorder and the diagnoses of anxiety and depressive disorder. For any disorder other than a personality disorder, the examiner must provide an opinion as to the following questions: i. The examiner should state whether there is clear and unmistakable (undebatable) evidence that the identified disorder(s) preexisted the Veteran's active service. ii. If the answer to question (a) is yes, is there clear and unmistakable (undebatable) evidence that the identified disorder(s) did NOT undergo an increase in severity beyond the natural scope of the disability during the Veteran's active service? iii. If the answer to question (a) is no, is it at least as likely as not (a 50 percent or greater probability) that the identified disorder(s) first manifested during service or is otherwise related to active service? (b) Regarding diabetes, the examiner should state whether it is at least as likely as not that the Veteran's diabetes mellitus was aggravated by her psychiatric condition, specifically whether the binge eating impacts her ability to control her diabetes. In answering this question, the examiner must consider the Veteran's statement that prior to March 2016, she used to binge eat several times per week. The examiner is advised that aggravation is defined as any worsening of a nonservice-connected disability by a service-connected disability. Permanent worsening need not be shown. A complete rationale should accompany any opinion provided. 2. After completion of the above, readjudicate the claims. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and her representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. 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 2014). _________________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).