Citation Nr: 1801850 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 04-10 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder and depression. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL The Veteran and the Veteran's Father ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1, 1977 to June 24, 1977. This matter comes before the Board of Veterans' Appeals (Board) from a July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, denying service connection for an acquired psychiatric disorder. In May 2005, the Veteran testified at a hearing before a Decision Review Officer (DRO); a copy of the transcript has been prepared and associated with the record. The Veteran also requested a hearing before a Veterans Law Judge when he filed his appeal, but that request was ultimately withdrawn in March 2009. This matter has come before the Board on several previous occasions. The Veteran's claim was denied by the Board in June 2006. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Veterans Court). The Veterans Court vacated that decision and remanded the matter to the Board pursuant to a Joint Motion for Remand (JMR) in April 2007. The Board subsequently remanded the claim for additional development in October 2007, August 2008, and April 2009, and the Board also sought a specialist medical opinion in March 2010 from the Veterans Health Administration (VHA). See 38 C.F.R. § 20.901(a) (2017); see 38 U.S.C. §§ 5109(a), 7109(a) (2012). The report, dated in May 2010, has been associated with the claims file. The Veteran's claim was denied by the Board again in September 2010, and the Veteran appealed to the Veterans Court. In March 2011, the Veterans Court again vacated the Board's decision and remanded the claim to the Board pursuant to a JMR. The Board remanded the claim for additional development in July 2011. The Veteran's claim was denied by the Board again in November 2012, and the Veteran appealed to the Veterans Court. In July 2013, the Veterans Court vacated the Board decision and remanded the claim to the Board pursuant to another JMR. The Board remanded the claim to comply with the instructions of the Veterans Court in January 2014. The Board most recently denied the Veteran's claim in February 2016, and the Veteran appealed to the Veterans Court. In February 2017, the Veterans Court issued a memorandum decision vacating the Board's decision and remanding the claim to the Board for readjudication consistent with the instructions outlined in the memorandum decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As indicated above, the February 2017 memorandum decision of the Veterans Court vacated the previous Board decision for two reasons. First, the Veterans Court determined that the Board had failed to provide an adequate statement of reasons and bases for relying on the May 2010 VHA opinion. In making this determination, the Veterans Court also found that the VHA opinion's reasoning, that the Veteran's personality disorder preexisted his service because personality disorders by are by definition developmental and manifest in adolescence, was "circular." The Veterans Court specifically instructed that the Board needed to provide further explanation of its reasons and bases for relying on such an opinion or to remand the matter for an opinion that provided a better rationale. Second, the Veterans Court also found that the Board failed to provide an adequate statement of reasons and bases for its conclusion that the Veteran's preexisting condition was not permanently aggravated by the Veteran's service. In making this determination, the Veterans Court found that the Board had misapplied the doctrine of soundness. In addition to these concerns, the broader issue in this appeal has been determining the correct diagnosis for the Veteran's condition. A private psychiatrist has provided opinions in July 2008 and February 2013 opining that the Veteran has suffered from bipolar disorder and that this condition is etiologically related to the Veteran's service. Meanwhile, VA mental health providers have provided opinions that the Veteran does not meet the diagnostic criteria for bipolar disorder due to a lack of a history of manic episodes and indicated diagnoses of a mood disorder or a personality disorder. The February 2013 private opinion criticized the VA providers' diagnosis of a personality disorder in particular, and asserted that anticipated (at that time) changes to the DSM 5 criteria for both bipolar and personality disorders would establish more clearly that the Veteran's appropriate diagnosis was bipolar disorder rather than a personality disorder. Subsequent VA treatment records in October 2016 and March 2017 indicate that the Veteran either does not have a personality disorder or has a history of a personality disorder. The record does not contain an evaluation of the Veteran's condition that appropriately addresses these conflicting diagnoses and accounts for the updated criteria contained in the DSM 5. Furthermore, VA received additional medical records in February 2013 from the Social Security Administration (SSA), and the receipt of these records appears to post-date all the opinions received in this case. Consequently, the Board finds that it must seek an additional opinion that provides a sufficient rationale, address the conflicting diagnoses in the record, account for the updated criteria contained in the DSM 5, and consider the additional evidence received since the last evaluation of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (providing that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding/updated VA treatment records relevant to the Veteran's claim that are not already associated with the claims file. 2. Once the records development described above has been completed, provide the Veteran's claims file, to include a copy of this remand, to an appropriate VA examiner to assess the nature, severity, and etiology of the Veteran's psychological conditions. If the examiner determines that any opinion requested cannot be given without an examination, the Veteran should be scheduled for an appropriate examination. The examiner should address the following: (a) The examiner should state, to the extent possible, what psychiatric conditions the Veteran is diagnosed with at this time and throughout the appeal period. With respect to the appropriate diagnosis or diagnoses, the examiner should address whether and in what manner any changes made to the criteria for bipolar disorder or a personality disorder in the DSM 5 has affected the Veteran's diagnosis or diagnoses as the February 2013 private opinion anticipated that it might. (b) With regard to the Veteran's diagnosis of bipolar disorder, the examiner should comment on the disagreement between the July 2008 and February 2013 private opinions and the May 2010 VHA opinion (and other VA opinions) that indicate that the Veteran does not meet the diagnostic criteria for bipolar disorder due to a lack of history of manic episodes. In this regard, the examiner should address records of the Veteran's treatment outside VA in June 2002 that describe episodes of increased energy, extreme elation, increased sexual interest, and similar symptoms, as well as April 2005 VA treatment records that document that the Veteran experienced periods of increased energy and was prescribed "antimanic" medications. In particular, the examiner should explain whether or not these records indicate or document a history of manic episodes. (c) The examiner should state whether it is clear and unmistakable that any of Veteran's psychiatric conditions predated his period of active service. If so, the examiner should state which conditions predated the Veteran's service, and should explain why the examiner has reached this conclusion. In making this explanation, the examiner should not rely merely on the definition of a particular condition as developmental, but should cite to the medical literature, the evidence or reported medical history of record, or both. (d) If it is the examiner's opinion that the Veteran suffered from a personality disorder that predated the Veteran's service, the examiner should state whether it is at least as likely as not (50 percent or greater probability) that any aspect of the Veteran's service or any psychiatric condition incurred in or as a result of service super-imposed any additional disability on the Veteran's preexisting personality disorder. (e) If it is the examiner's opinion that the Veteran suffered from a bipolar disorder that predated the Veteran's service, the examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service aggravated the preexisting condition beyond the course of its natural progression. (f) The examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric condition was incurred in or caused or aggravated (worsened to any extent) by the Veteran's service. In explaining the rationale for this opinion, the examiner should address the Veteran's reports during his initial treatments and hospitalizations in 1997 that he had previously received mental health treatment of some kind in the 1980s for similar symptoms. These statements can be found in the treatment records provided by SSA. The examiner should provide a complete rationale for each opinion given, and cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 3. Once the development described above has been completed, undertake any further development that may be indicated as a result. Then, readjudicate the claims on appeal. If any claim remains denied, or less than the full benefit sought is granted, provide the Veteran and his attorney with an appropriate Supplemental Statement of the Case and a reasonable opportunity to respond. Then, if the file is otherwise in order, return the file to the Board for further 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. §§ 5109B, 7112 (2012). _________________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).