Citation Nr: 18148615 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-35 195A DATE: November 7, 2018 ORDER Entitlement to eligibility for treatment under 38 U.S.C. § 1702 for a psychiatric disorder is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT The preponderance of the competent and credible evidence of record is against finding an active diagnosis of psychosis developed within two years of the Veteran’s separation from active duty service during the Vietnam era. CONCLUSION OF LAW The criteria for eligibility for treatment under 38 U.S.C. § 1702 for a psychiatric disorder have not been met. 38 U.S.C. §§ 1702, 5107 (2012); 38 C.F.R. § 3.384 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The United States Court of Appeals for Veterans Claims has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board has characterized the claim on appeal to entitlement to service connection for an acquired psychiatric disorder. In August 2018, the Veteran perfected appeals as to entitlement to service connection for sleep apnea, and entitlement to earlier effective dates for the grants of service connection for lumbar spine surgical scar, left lower extremity radiculopathy, and right lower extremity radiculopathy. However, the Board’s review of the evidentiary record reveals that the Agency of Original Jurisdiction (AOJ) is still taking action on those issues. As such, the Board will not accept jurisdiction over those issues at this time. Eligibility to treatment under 38 U.S.C. § 1702 for a psychiatric disorder The Veteran served on active duty from August 1972 to April 1975. Under 38 U.S.C. § 1702(a), any veteran of the Vietnam era who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before May 8, 1977, in the case of a Vietnam era veteran, shall be deemed to have incurred such disability in the active military, naval, or air service. The Board notes that 38 U.S.C. § 1702 has been expanded to include diagnoses of active mental illness; however, this provision explicitly applies only to veterans of the Persian Gulf War. See 38 U.S.C. § 1702(b). The evidence of record does not indicate, and the Veteran does not contend, that he served on active duty during the Persian Gulf War era. See DD Form 214; 38 C.F.R. § 3.2(i) (the Persian Gulf War era is defined as beginning on August 2, 1990, and ending on a date to be prescribed by Presidential proclamation or law). As such, the Board will limit consideration solely to whether the Veteran had an active psychosis within two years of his separation from service. VA has defined the term psychosis for purposes of presumptive service connection at 38 C.F.R. § 3.384. Under 38 C.F.R. § 3.384, the term “psychosis” is defined so as to include brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. The Board finds that the evidence of record does not indicate medical evidence of psychosis as defined by VA regulations during or within two years of service. The Veteran’s service treatment records include an assessment of mild situational adjustment disorder in November 1974, and there was no indication of a psychiatric disorder upon the April 1975 separation examination. The evidence of record does not indicate complaints or treatment for mental health symptoms within two years of the Veteran’s separation from service. Further, neither the Veteran nor his representative contends that the Veteran developed active psychosis during or within two years of his separation from service. Accordingly, the Board finds the preponderance of the competent and credible evidence of record weighs against finding that the Veteran developed psychosis either during active service or within two years of separating from active service. For these reasons, the Board must conclude that the preponderance of the evidence is against the claim of entitlement to eligibility for treatment under 38 U.S.C. § 1702 for a psychiatric disorder. The benefit of the doubt doctrine is therefore not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran’s representative contends the Veteran’s current depression and anxiety are secondary to his chronic pain and inability to work due to his service-connected disabilities. See December 2017 brief; May 2017 brief. The Veteran has reported pain and functional limitations due to his service-connected lumbar spine disability and radiculopathy of the bilateral lower extremities. See May 2017 rating decision; April 2017 VES back examination report. A remand is required to an obtain a medical opinion regarding secondary service connection. The Veteran’s representative has also submitted copies of VA psychological testing performed in June 2017. On remand, the Veteran’s outstanding VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2017 to the present. 2. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s current acquired psychiatric disorder. It is up to the discretion of the clinician as to whether a new examination is necessary to provide an adequate opinion. After a review of the claims file, and examination of the Veteran if deemed necessary by the clinician, the clinician is asked to respond to the following inquiries: a) Identify with specificity all acquired psychiatric disorders that are currently manifested, or that have been manifested at any time since July 2010. b) For each diagnosis, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current acquired psychiatric disorder was caused by his service-connected disabilities, alone or in combination? The clinician should specifically address the contention that the Veteran’s depression and anxiety are secondary to his chronic pain and inability to work due to his service-connected disabilities. c) For each diagnosis, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current acquired psychiatric disorder is aggravated by his service-connected disabilities, alone or in combination? Aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. (Continued on the next page)   3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Delhauer, Counsel