Citation Nr: 18144076 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 16-36 463 DATE: October 23, 2018 REMANDED Entitlement to service connection for chronic acquired psychiatric disorder to include, bipolar disorder with alcohol, marijuana, and narcotic dependency is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 14, 1977 to November 16, 1977. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a September 2014 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Entitlement to service connection for chronic acquired psychiatric disorder to include, bipolar disorder with alcohol, marijuana, and narcotic dependency is remanded. The Veteran is seeking service connection for a chronic acquired psychiatric disorder. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C.§ 5103A (2012); 38 C.F.R. § 3.159 (2018). The Veteran’s service treatment records do not contain any notation, treatment, or diagnosis related to any acquired psychiatric disorder. However, the Veteran’s personnel records contained that the Veteran was discharged due to exhibiting a poor attitude, lack of motivation, inability to adapt socially and emotionally, was involved in several acts of discreditable nature (suspected to have suicidal tendencies), and frequently expressed the desire to be eliminated from the military. The Veteran was most recently afforded a VA examination in August 2014 to determine the nature and etiology of any acquired psychiatric disorder. However, the Board finds the August 2014 rating decision as inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). During the August 2014 VA examination, the examiner listed the diagnoses of bipolar disorder, alcohol dependency, and marijuana dependency. The examiner noted that the Veteran’s depression did not have its onset during his military service. However, it is not clear whether the Veteran has a distinct diagnosis of depression. Moreover, the examiner held that the Veteran’s claimed condition was less likely than not related to his military service. The examiner opined that the Veteran suffered guilt and shame related to the pregnancy of a girlfriend and later in life he did have multiple suicidal attempts later in life. However, the medical opinion does not sufficiently opine whether the Veteran’s bipolar condition was related to service. The examiner stated that the Veteran did not have any psychiatric care in the military, but did not discuss the service personnel records discussed above. Moreover, review of record indicates that the Veteran has had a long-standing history of a personality disorder. See May 2014 Private Treatment Records. VA regulations provide that personality disorders are considered “defects,” not “diseases or injuries,” within the meaning of applicable legislation for VA disability compensation purposes and, therefore, cannot be service connected either directly or on the basis of aggravation. See 38 C.F.R. §§ 3.303 (c), 4.9, 4.127 (2015); see also Schedule for Rating Disabilities; Mental Disorders, 61 Fed. Reg. 52,695 (Oct. 8, 1996). Defects are defined as “structural or inherent abnormalities or conditions which are more or less stationary in nature.” VAOPGCPREC 82-1990 (July 18, 1990). Congenital or developmental “defects,” such as personality disorders, automatically rebut the presumption of soundness and are considered to have preexisted service. 38 C.F.R. § 3.303 (c); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a personality disorder is not the type of disease or injury related defect to which the presumption of soundness can apply); see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (holding that the presumption of soundness does not apply to congenital defects). However, 38 C.F.R. § 4.127 provides that disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected. See also VAOPGCPREC 82-1990 (July 18, 1990) (noting that congenital and developmental defects can be subject to superimposed disease or injury such that service connection may be granted where the superimposed disease or injury occurs during service). Therefore, while 38 C.F.R. §§ 3.303 (c), 4.9, 4.127 prohibits any grant of service connection for a personality disorder, even if aggravated in service, the Veteran’s diagnosed bipolar disorder, or any other diagnosed psychiatric disorder, may provide a basis for service connection if the evidence demonstrates a psychiatric disorder was superimposed upon his diagnosed personality disorder. Under these circumstances, the Board will not proceed with final adjudication of the claims until a competent medical opinion with supporting rationale is obtained that adequately addresses the etiology of the Veteran’s claimed disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Due to the need for a remand in this matter, the Board will also provide the opportunity for the procurement of any outstanding VA or private medical records. The matter is REMANDED for the following actions: 1. Send the Veteran and his representative a letter requesting that he provide sufficient information and, if necessary, authorization, to obtain any additional evidence from all VA and non-VA health care providers who have treated him for his personality disorder, bipolar disorder, or any other diagnosed psychiatric disorder that is not currently of record, including any private treatment records related to ongoing treatment for the aforementioned disabilities. If the Veteran responds, assist him in obtaining any additional evidence identified, following current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 2. After all records and/or responses received from each contacted entity have been associated with the claim (to the extent possible), Forward the record and a copy of this remand to the VA clinician who performed the August 2014 VA mental disorders examination or, if that clinician is not available, to another similarly qualified VA clinician for preparation of an addendum opinion. Further in-person examination of the Veteran is left to the discretion of the clinician providing the addendum opinion. If the clinician deems such examination necessary to provide the information requested below, then such an examination should be scheduled. Following a review of the record, the examiner must address the following: a) Provide diagnoses for all current acquired psychiatric disorders, to include those noted during the appeal period. b) Is it at least as likely as not (a 50 percent probability or greater), that the Veteran’s claimed bipolar disorder began in service, was caused by service, or is otherwise related to the Veteran's military service? c) Is it at least as likely as not (a 50 percent probability or greater), that any diagnosed psychiatric disorder began in service, was caused by service, or is otherwise related to the Veteran's military service? d) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's personality disorder was subject to any diagnosed superimposed psychiatric disorder resulting in additional disability. The VA examiner should indicate that the claims file was reviewed, including the Veteran’s service personnel records that relate to his discharge based on failure to maintain acceptable standards. If the examiner believes that the Veteran did/does not have a personality disorder, the examiner should state so and explain this opinion fully. The examiner is directed to the May 2014 medical treatment records detailing the Veteran's psychological treatment (including references to a personality disorder). For purposes of these opinions, the examiner should assume the Veteran is a credible historian. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. The examiner should address the notation in the Veteran’s personnel records of exhibiting a poor attitude, lack of motivation, inability to adapt socially and emotionally, involved in several acts of discreditable nature (suspected to have suicidal tendencies), and frequently expressed the desire to be eliminated from the military. The examiner should consider the lay testimony of record. A detailed rationale supporting the examiner’s opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). (Continued on the next page)   3. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel