Citation Nr: 1808447 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-32 096A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including as secondary to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran had active duty service from May 1979 to October 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 RO decision that in pertinent part, denied service connection for a psychiatric disorder and a bilateral eye condition. In February 2015, the Veteran testified at a video hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The evidence shows that the Veteran has been diagnosed with more than one psychiatric disorder. His claim therefore encompasses all of these diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In April 2015, the Board remanded this case to the Agency of Original Jurisdiction (AOJ) for additional development. In an April 2016 rating decision, while the appeal was on remand, the AOJ granted service connection for bilateral cataracts. Thus, the issue of is entitlement to service connection for a bilateral eye condition is no longer in appellate status, since the Veteran did not appeal the rating or effective date assigned in this decision. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating he must separately appeal for a higher rating and earlier effective date since these are "downstream" issues from his initial claim for service connection). The case was subsequently returned to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that further development is required prior to adjudication of the Veteran's claim of service connection for an acquired psychiatric disorder. The Board previously remanded this case for a medical opinion as to whether the current psychiatric disorder was incurred in service. VA examinations were conducted in June 2015 and December 2015, and a supplemental medical opinion was obtained in March 2016, as to the question of direct service connection. The AOJ has recently established service connection for bilateral cataracts (with special monthly compensation for blindness), and bilateral radiculopathy of the lower extremities, and the Veteran has other service-connected disabilities to include a lumbar spine disability, hearing loss, and tinnitus. In an April 2016 written brief, the Veteran's representative asserted that service connection should be granted for a psychiatric disorder as secondary to a service-connected condition. The Board finds that remand is required for a medical opinion as to whether any current psychiatric disorder is proximately due to or was aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (2017). Moreover, the Board finds that the medical opinions of record are conflicting as to the theory of direct service connection, as discussed below, and a supplemental medical opinion is needed to reconcile these opinions. The Veteran asserts that his acquired psychiatric disorder is related to active duty service. At the Board hearing, the Veteran testified that a superior officer treated him badly and verbally harassed him. The Veteran testified that he received a Chapter 13 discharge due to defective attitude. He contended that his depression is related to his discharge from service. On mental status examination during service in September 1982, an examiner noted that the Veteran had a depressed mood, although a psychiatric disorder was not diagnosed. Service treatment records are negative for a diagnosis of a psychiatric disorder, although service personnel records show that a discharge was recommended under Chapter 13 due to apathy and defective attitudes. Post-service medical records are negative for complaints or treatment of a psychiatric disorder for several years after separation. The Veteran testified that he had continuous problems after service, but did not seek treatment because he was unaware that he could receive care from VA. A report of a psychological examination performed in September 2009 for the Social Security Administration by a private psychologist, G.K., Ph.D. found that the Veteran had no current Axis I psychiatric disorder, and that the Veteran's report of auditory hallucinations was not credible. The June 2015 VA examiner diagnosed schizoaffective disorder, and opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale was, "It seems more probable that the early symptoms of schizoaffective disorder precipitated his poor military adjustment." The Board finds that this opinion is contradictory. The December 2015 VA examiner diagnosed schizoaffective disorder, depressive type, other specified personality disorder, stimulant use disorder, cocaine, severe, in sustained remission, and cannabis use disorder, severe, in early remission. The examiner extensively summarized pertinent medical records and opined that the diagnosed disorders are less likely than not related to events in service. The examiner stated that although there was one mention of depression related to his being Chaptered out of the military, the Veteran did not report seeking treatment for a mental condition for many years after his military service. The Board notes that it does not appear that the examiner considered the Veteran's lay testimony of continuous psychiatric symptoms after separation. The examiner opined that the Veteran's personality disorder existed prior to service. In March 2016, she opined that the Veteran's problems with his superior officer were a symptom of his pre-existing personality disorder and did not worsen his psychiatric condition which followed its natural course. A psychiatric disorder was not noted on entrance examination prior to the Veteran's period of active duty service. Governing law provides that a Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability (1) existed prior to service and (2) was not aggravated by service will rebut the presumption of soundness. 38 U.S.C. § 1132; 38 C.F.R. § 3.304 (b). Personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303 (c). Ongoing relevant medical records should also be obtained. 38 U.S.C. § 5103A(c) (2012); 38 C.F.R. § 3.159(c)(3) (2017); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. With any necessary releases, obtain updated VA and/or private medical records of treatment for a psychiatric disorder and associate them with the claims file. 2. Obtain a supplemental VA medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current psychiatric disorder is (a) related to service, or (b) was caused or (c) aggravated by a service-connected disability, currently bilateral cataracts (with special monthly compensation for blindness), bilateral radiculopathy of the lower extremities, a lumbar spine disability, hearing loss, and tinnitus. With regard to (a), the examiner is asked to reconcile the various medical opinions of record, to include the medical evidence summarized in the body of this remand, including a private examination in September 2009, and VA examinations and medical opinions in June 2015, December 2015 and March 2016. The examiner must consider the Veteran's testimony of continuous psychiatric symptoms after separation. (c) Because the Veteran has been diagnosed with a personality disorder that existed prior to service (at the December 2015 VA examination), the VA examiner is requested to discuss whether there is any evidence of a superimposed acquired psychiatric condition on that personality disorder in service that resulted in a current acquired psychiatric disability. Any opinions expressed by the examiner must be accompanied by a complete rationale. If the examiner is unable to provide the requested opinions, he or she should clearly explain why. 3. Readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond. The Veteran has the right to submit additional evidence and argument on the matter 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). S. L. Kennedy 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).