Citation Nr: 21076985 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-29 537 DATE: December 28, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for a psychosis for the purpose of establishing eligibility for VA treatment only, under the provisions of 38 U.S.C. § 1702 is remanded. REASONS FOR REMAND The Veteran had active duty service from May 8, 2012 to June 27, 2012 in the United States Army. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In August 2019, the Veteran and his father presented testimony at a Travel Board hearing at the AOJ before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. These matters were previously before the Board in August 2020 and were remanded for additional development. While the Board regrets further delay in the resolution of this case, another remand is necessary because there has not been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for an acquired psychiatric disability is remanded. 2. Entitlement to service connection for a psychosis for the purpose of establishing eligibility for VA treatment only, under the provisions of 38 U.S.C. § 1702 is remanded. The August 2020 Board remand sought to obtain a new, signed VA Form 21-4142 (Authorization and Consent to Release Information to the VA) for private treatment records, request Social Security Administration (SSA) records, and obtain a VA addendum opinion. The August 2020 Board remand was returned as undeliverable. A subsequently mailed VA Form 21-4142 Authorization and Consent to Release Information to the VA and Supplemental Statement of the Case (SSOC) were all returned mail as unable to forward. It is unclear to the Board whether the Veteran received these documents and had an opportunity to submit the information requested by the Board in the August 2020 remand. As such, appropriate action to confirm the Veteran's current mailing address and to re-send the Veteran and his representative the August 2020 Board decision, VA Form 21-4142 Authorization and Consent to Release Information to the VA, and the SSOC should be accomplished on remand. The August 2020 Board remand directed the AOJ to obtain the Veteran's SSA records and to document all requests to SSA and the responses from SSA. Requests were made to SSA in October 2020 and November 2020, but no response is recorded in the file, nor was there any indication than no response was received. As a request was made, any response received to this request needs to be of record to ensure compliance with the Board August 2020 remand directive and VA's duty to assist the Veteran in development of his claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). All attempts to obtain these records must be documented in the claims file. The RO should follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). An addendum opinion was obtained in December 2020 to properly address whether it is "undebatable" or "obvious" or "absolutely certain" that bipolar or other psychiatric disability existed prior to the Veteran's active service and was not aggravated during service beyond the natural progress of the disease. However, VA's duty to assist the Veteran in development of his claim remains, and the Veteran's mailing address must be confirmed so he may attempt to comply with the prior Board remand. VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must cooperate in VA's efforts to obtain evidence needed to adjudicate his claims, including keeping his contact information up to date. The Board must also obtain the SSA records or a response if they do not exist. Then, an addendum opinion may be obtained. Veterans, as a matter of law, are entitled to compliance with Board instructions. Stegall v. West, 11 Vet. App. 268 (1998). Thus, the claims will be remanded for documented compliance with the Board's prior directives. The matters are REMANDED for the following actions: 1. The AOJ must attempt to obtain the Veteran's current mailing addresses. All records/responses received must be associated with the electronic claims file. 2. After completing the above address confirmation, resend the mail returned to VA, including the August 2020 Board decision, November 2020 VA correspondence with VA-Form 21-4142a, January 2021 Supplemental Statement of the Case, and March 2021 docket letter. Make two requests for the authorized private psychiatric treatment records listed below, unless it is clear after the first request that a second request would be futile. The Veteran is also asked to provide any of the above private psychiatric treatment records himself, if he has them in his possession. (a.) Augusta University Health Medical Center records dated from December 2015 to September 2018. (b.) Serenity Behavioral Health treatment records dated from June 2012 to August 2019. (The Veteran previously identified the above private providers and listed their respective contact information on September 2018 and September 2019 VA Forms 21-4142a (General Releases for Medical Provider Information to the VA)). 3. Request from the Social Security Administration copies of documents, including medical records, and any decisions issued in connection with the Veteran's claim for benefits. All attempts to obtain such records should be documented in the claims file. 4. If the additional private treatment records and/or SSA records are received, then obtain an addendum opinion from the August 2013 VA psychological examiner. If this VA examiner is no longer available, another qualified VA clinician must provide the addendum opinion. Only if deemed necessary by the VA examiner is another VA mental health examination necessary. Access to the electronic claims file must be made available to the VA examiner for review. The VA examiner should address the Veteran's relevant lay assertions, and if necessary, address whether the Veteran's lay assertions are consistent or inconsistent with his medical history and clinical data. Finally, the VA examiner must provide a clear explanation for the medical opinion. THE VA EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES: (a.) Is it "undebatable" or "absolutely certain" that the Veteran had a psychiatric disorder that preexisted his period of active duty service? (b.) For each psychiatric disorder that preexisted the Veteran's period of active duty service, the examiner should state whether it is "undebatable" or "absolutely certain" that there was no increase in disability during service? (c.) If there was an increase in disability for a psychiatric disorder during service, is it "undebatable" or "absolutely certain" that any increase in disability was due to the natural progress of the preexisting psychiatric disorder? (d.) If the Veteran has a current psychiatric disorder that is totally unrelated to any psychiatric disorder that preexisted his service, is it at least as likely as not (i.e., 50 percent or more probable) that this current psychiatric disorder manifested during service or is otherwise causally or etiologically related to his active duty service in May and June of 2012? (e.) In answering the questions above, the VA examiner is advised of the following: Two years prior to service, in May 2009, the Veteran was hospitalized at Riverwoods Hospital for a nervous breakdown. This occurred in the context of his grandfather's death and marital problems with his wife. According to the May 2009 and June 2009 private hospital records, he was experiencing hallucinations, delusions, and suicide ideation. It was noted he thought he was "Jesus" or a prophet. He was wandering the streets and drained his wife's bank account. He was diagnosed with a bipolar disorder. From May 2009 to December 2009, private GRN community service progress notes document the Veteran undergoing group and individual psychotherapy for his bipolar disorder. He was prescribed psychiatric medication - Depakote. It appears his condition improved. He eventually stopped taking his medication. Service treatment records (STRs) and service personnel records (SPRs) did not note any psychiatric disorder upon enlistment into service at the Veteran's November 7, 2011 enlistment examination. However, according to subsequent STRs / SPRs, a short time after he began basic training in May 2012, he experienced delusions, anxiety, hallucinations, pressured speech, paranoia, psychosis, rapid thoughts, agitation, grossly impaired judgement, and irrational fear. He reported difficulty adjusting to the military environment. He was diagnosed with bipolar I disorder, manic and severe, with psychotic features. During service, he was hospitalized for his bipolar disorder on an inpatient basis in May 2012, improved for a little while, but was again hospitalized as an inpatient in June 2012. He was treated with psychiatric therapy and multiple psychiatric medications. In a June 23, 2012 STR psychology clinic note, several days before discharge, his bipolar I disorder was assessed as a "recurrent manic disorder in partial remission." In STRs and SPRs, military clinical personnel determined on multiple occasions that the Veteran's bipolar disorder existed prior to service (EPTS). His military supervisors determined that had the bipolar disorder been identified at enlistment in November 2011, it would have precluded his induction and enlistment into the Army. Therefore, in June 2012, he received an administrative discharge due to failure to meet the medical procurement standards of the military. Regarding lay evidence, the VA examiner is advised the Veteran contends his preexisting bipolar disorder was aggravated or permanently worsened during his period of active duty service in May and June of 2012. The Veteran and his father testified at the August 2019 Travel Board hearing that prior to enlistment into service in 2011, the Veteran was no longer experiencing any symptoms of his previously diagnosed bipolar disorder. He says he felt normal. He felt his bipolar disorder had "resolved." However, a few days into basic training in May 2012, he underwent a great deal of stress, which permanently aggravated his bipolar disorder. He testified that during service he experienced insomnia, irritability, longing for his family, intense pressure, and difficulty adjusting to new surroundings. Post-service, he states he continued to experience flare-ups of his bipolar disorder from 2012 to 2018. Post-service, the Veteran continued to receive mental health treatment for his bipolar disorder immediately after discharge from July 2012 to January 2013 at Serenity Behavioral Health (these private records are being secured on remand). In January 2013 and February 2013, the Veteran was admitted to Memorial Hospital for hallucinations and "chronic mental illness." It was noted he has been unable to work since discharge from the military. Post-service, private mental health, counseling, and inpatient hospital records dated from 2013 to 2015 reveal diagnoses of bipolar disorder, NOS; psychotic disorder, NOS; schizoaffective disorder; paranoid schizophrenia; adjustment disorder; and obsessive compulsive disorder (OCD). Post-service, the August 2013 VA psychological examiner opined that although the Veteran's bipolar disorder, NOS, preexisted his military service, it is "less likely as not" that his bipolar disorder was permanently aggravated by his military service. The rationale of the VA examiner was that a bipolar disorder is often a cyclical disorder, meaning that it is common for an individual with this disorder to experience periods or mania / hypomania, periods of depression and periods of "normal" functioning. The Veteran indicated that he was not taking medication for bipolar disorder when he began to experience symptoms in the military. This is not an uncommon occurrence for people with bipolar disorder according to the VA examiner. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, Associate 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.