Citation Nr: 20003590 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 09-07 295 DATE: January 15, 2020 REMANDED Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder (PTSD). REASONS FOR REMAND The Veteran had honorable service in the United States Marine Corps from March 1970 through March 1972, and service characterized by the service department as under conditions other than honorable from March 1972 through December 1974. In April 1982, a Department of Veterans Affairs (VA) regional office (RO) determined that the Veteran is eligible for VA benefits for his service from March 1970 through March 1972, but that he is not eligible for VA benefits for his service from March 1972 through December 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2007 rating decision issued by a VA RO. The Veteran’s testimony was received during an August 2010 Travel Board hearing. A transcript of that testimony is associated with the electronic claims file. During that hearing, the Veteran withdrew his claim of entitlement to service connection for PTSD, and such issue was subsequently dismissed in a November 2010 decision. In November 2010 and August 2014, the Board remanded the claim for further development. In March 2016, the Board denied the claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD. The Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). In June 2017, the Court issued an order granting a joint motion for remand. In September 2017, the Board remanded the issue for further development. In June 2019, the RO denied entitlement to service connection for anxiety disorder not otherwise specified. That particular psychiatric disorder is part of the issue on appeal and is not the subject of a separate adjudication. There was some confusion about whether the Veteran’s service treatment records were lent to the Board for Correction of Naval Records. That correction board stated that the Veteran’s service treatment records had never been lent to them. Pursuant to November 2010 Board remand, the AOJ requested another search for the Veteran’s service treatment records. Due to the confusion, the Board directed the AOJ to inform the National Personnel Records Center that the Board of Correction for Naval Records stated that it had never been lent the Veteran’s service treatment records. The AOJ did not inform the National Personnel Records Center of the response of the Board of Correction for Naval Records to the inquiries about whether that organization ever had possession of the Veteran’s service treatment records. In the June 2017 joint motion for remand, the parties directed the Board to ensure substantial compliance with the November 2010 Board remand instructions by having the National Personnel Records Center conduct another search for the Veteran’s service treatment records and, pursuant to that search, informing the National Personnel Records Center of the response of the Board of Correction for Naval Records. In September 2017, the Board remanded the issue, pursuant to the directives of the joint motion, to attempt to obtain the Veteran’s service treatment records by informing the National Personnel Records Center of the response of the Board of Correction for Naval Records. The RO again requested the Veteran’s service treatment records but did not inform the National Personnel Records Center of the response of the Board of Correction for Naval Records, as directed by the Board remand. Thus, the RO did not comply with the directives of the September 2017 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). In its September 2017 remand, Board directed that the RO to obtain records from a VA facility in Knoxville, Tennessee, in 1975. The RO contacted the Nashville VA Medical Center about those records. The Mountain Home VA Medical Center, however, may have those treatment records, and that facility should be contacted. In September 2019, the Salisbury VA Medical Center stated that the only record that facility had was a 2002 VA examination report. The RO did not attempt to obtain that record. The RO should obtain any additional records from the Durham VA Medical Center from November 2019 to the present. A September 2019 VA examiner stated that the Veteran did not have a current Axis I disorder or a personality disorder. A September 2014 VA examiner, however, diagnosed a personality disorder. VA treatment records reveal diagnoses of Axis I disorders. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). It is unclear whether the September 2019 VA examiner was stating that the Veteran never had an Axis I psychiatric disorder or personality disorder since he filed his claim in September 2005. An addendum to the September 2019 VA examination is necessary to determine whether the Veteran has had an Axis I disorder or personality disorder since he filed his claim in September 2005. A February 1980 VA treatment record reflects that he was referred to VA by the Vance County Mental Health Clinic. The RO should attempt to obtain records from this facility. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his psychiatric disorder and obtain any identified records. Obtain the Veteran’s VA treatment records from the Durham VA Medical Center for the period from November 2019 to the present. Contact the Mountain House VA Medical Center to obtain the Veteran’s VA treatment records dated in 1975 from a VA facility in Knoxville, Tennessee. Contact the Salisbury VA Medical Center to obtain the Veteran’s VA examination report dated in 2002. Ask the Veteran to complete a VA Form 21-4142 for the Vance County Mental Health Clinic. Make two requests for the authorized records from the Vance County Mental Health Clinic, unless it is clear after the first request that a second request would be futile. 2. Contact the National Personnel Record Center and request another search for the Veteran’s service treatment records. In making the request, the AOJ must inform the National Personnel Records Center that the Board for Correction of Naval Records stated that the Veteran’s service treatment records were never lent to that organization. 3. After the development in 1 and 2 is completed, AOJ should arrange for the Veteran’s claims file to be reviewed by the September 2019 VA examiner who conducted the examination for preparation of an addendum opinion regarding whether the Veteran has never had an Axis I disorder or personality disorder since he filed his claim in September 2005. If the examiner is unavailable, arrange for the claims file to be reviewed by an appropriate clinician. The Veteran should only be scheduled for another examination if the September 2019 VA examiner or the new clinician deems it necessary. The examiner should opine on whether it is more likely than not (i.e., 51 percent or greater degree of probability) that the Veteran has never had an Axis I psychiatric disorder since he filed his claim in September 2005. The examiner should opine on whether it is more likely than not (i.e., 51 percent or greater degree of probability) that the Veteran has never had a personality disorder since he filed his claim in September 2005. If the examiner does not find that it is more likely than not (i.e., 51 percent or greater degree of probability) that the Veteran has never had an Axis I psychiatric disorder since he filed his claim in September 2005, the examiner should opine on whether it is it is at least as likely as not (i.e., 50 percent or greater degree of probability) that any Axis I psychiatric disorder that the Veteran has had since he filed his claim in September 2005 is related to the Veteran’s period of active service from March 1970 through March 1972. If the examiner does not find that it is more likely than not (i.e., 51 percent or greater degree of probability) that the Veteran has never had a personality disorder since he filed his claim in September 2005, the examiner should opine on whether it is it is at least as likely as not (i.e., 50 percent or greater degree of probability) that any personality disorder that the Veteran has had since he filed his claim in September 2005 was subject to a superimposed disease or injury during the Veteran’s period of active service from March 1970 through March 1972. 4. Thereafter, the AOJ should readjudicate the issue on appeal. If any benefit is not granted, the Veteran should be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.