07-40 179

Citation Nr: 1008490 Decision Date: 03/08/10 Archive Date: 03/17/10 DOCKET NO. 07-40 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, depressive disorder, psychosis, and schizophrenic reaction. 2. Entitlement to service connection for Hepatitis C. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1963 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in June 2005 and July 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California which, respectively, declined to reopen the Veteran's claim for service connection for posttraumatic stress disorder (PTSD) and denied entitlement to service connection for Hepatitis C. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in Oakland, California in October 2009 to present testimony on the issues on appeal. He submitted additional evidence at that time, with a waiver of RO consideration of that evidence. The hearing transcript has been associated with the claims file. The Board notes that, in addition to PTSD, this Veteran has been variously diagnosed with multiple other psychiatric disorders, to include depressive disorder, psychosis, schizophrenic reaction, polysubstance abuse and others. 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). The Board recognizes that new and material evidence would generally be required prior to adjudication of the previously denied claim of service connection for PTSD. See 38 C.F.R. § 3.156 . However, at the time of the last final denial of the Veteran's claim in December 2001 and at the time of the RO's most recent adjudication in November 2007, the Clemons case had not yet been decided. Thus as might be expected, VA has not considered alternative current psychiatric diagnoses within the scope of the current claim. Cf. Velez v. Shinseki, 23 Vet. App. 199, 205 (2009) (interpreting the holding in Clemons in the context of a new and material evidence determination where the RO was found to have considered "any diagnosed psychiatric condition that could be related to service") (emphasis in original). In light of the prevailing case law, the evidence currently of record, and VA's desire to give the Veteran every possible consideration with respect to his claim for benefits, the Board has reframed the issue of service connection to include any currently diagnosed acquired psychiatric disorder and finds that a de novo review by the RO is warranted. In all, the Board finds it equitable and just to characterize the issue on appeal as reflected on the cover page above. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A thorough review of the record reveals that additional evidentiary development is required before the issues of entitlement to service connection for an acquired psychiatric condition and Hepatitis C are ready for Board adjudication. See 38 C.F.R. § 19.9 (2009). Although the Board sincerely regrets the delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Initially the Board notes that the Veteran is shown to receive compensation from the Social Security Administration (SSA). See, e.g., SSA documentation submitted by Veteran, April 1995. The record does not explicitly identify this as disability compensation; however it appears that this is the likely nature of the award based upon the available evidence within the claims file. VA has a duty to acquire a copy of a decision granting SSA disability benefits and the supporting medical documents upon which such a decision was based. See Hayes v. Brown, 9 Vet. App. 67 (1996). The Veteran's SSA records must be requested prior to adjudication of the service connection claims currently on appeal. Furthermore, the Board is required to seek a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the Veteran suffered an event, injury or disease in service, and indicates that the current disability may be associated with the in-service event, injury or disease. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159 (c)(4) (2009). In this case, the Veteran was last afforded a VA Compensation and Pension examination for his psychiatric conditions in July 1992. VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69 (1995). When available evidence is too old for an adequate evaluation of a veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). To this end, it is necessary to discuss all theories of entitlement raised in the record, either by the claimant or in the medical evidence. Robinson v. Mansfield, 21 Vet. App. 545, 550-51 (2009). Notably, the record is not found to contain credible evidence of a verifiable stressor to support a claim of service connection for PTSD at the time of this remand; however, there is evidence to suggest that some other currently diagnosed psychiatric disability may be associated with in-service events. To be clear, service connection established in this manner does not require substantiation of a verifiable stressor. 38 C.F.R. § 3.303 . As there is a very low threshold for the duty to assist to attach in providing an examination in such circumstances, the Board finds that a new examination is now required for a fair adjudication of this claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In particular, the Veteran's service treatment records reflect that during military service in Vietnam in October 1966 the Veteran reported to sick call (abbreviated in the record as sc) in a "nervous state of mind" after realizing that he had done something wrong some time earlier in the week. He stated that he was "scared." Service treatment records, October 1966. Documented symptomatology at the time included nervousness, inability to retain food, and loss of sleep. The Veteran was noted to start crying after receiving an injection of 50 mg of Thorazine, then returned to work in a better frame of mind after resting. Additional service treatment record notations reflect vague complaints of insomnia, tiredness, and malaise. Id. A medical opinion is required to determine whether there is a medical relationship between any currently diagnosed psychiatric disorder and the symptoms noted during the Veteran's military service on a direct basis. 38 C.F.R. §§ 3.159 , 3.303. Also, chronic psychoses shall be granted service connection although not otherwise established as incurred in or aggravated by service if manifested to a compensable degree within one year from the date of separation from military service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Psychoses are defined for VA purposes as including 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. 38 C.F.R. § 3.384 (2009). This Veteran has previous diagnoses of schizophrenic reaction and psychosis not otherwise specified as documented in the record. See VA in-patient discharge report, May 2006; VA examination, July 1992. Thus, the psychiatric examiner is asked to determine whether psychosis is currently present, and if so, whether it was manifest to a compensable degree within one year from the Veteran's discharge. In reaching this determination, the examiner should consider and discuss the suicide attempt in 1967 or 1968 reported by the Veteran in his October 2009 hearing testimony. The Veteran reports that he was treated at Englewood Hospital in Chicago, Illinois in conjunction with this event. As the identified treatment records are relevant to the Veteran's claim for service connection, they must be sought. 38 C.F.R. § 3.159 (c). The examiner should also consider and discuss the Veteran's statements regarding symptoms experienced during military service, and the Veteran's and other lay statements of continuous psychiatric symptoms since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). It is also noted that personality disorders are not diseases or injuries within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. §§ 3.303 (c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Nevertheless, disability resulting from a mental disorder that is superimposed upon a personality disorder may be service-connected. See VAOPGCPREC 82-90; 38 C.F.R. § 4.127 (2009). As such, the examiner is asked to determine whether the Veteran is currently diagnosed with a personality disorder, and if so, whether there is other mental disability superimposed on a personality disorder. Due to the duration of the Veteran's psychiatric illness, multiple overlapping diagnoses, and overall complexity of the varying medical evidence in this case, the Board must rely on the examining VA physician to carefully consider each of the elements requested by the Board and offer a thorough medical opinion that describes the Veteran's current psychiatric disability, or disabilities, in sufficient detail so that the Board's evaluation will be a fully informed one. It is imperative that the medical examination report contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See NievesRodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board also notes that the most recent VA treatment records that have been associated with the claims file are dated in November 2008. All relevant VA treatment records created since that time should be obtained and associated with the claims file. The Board notes that during the appellate period, the Veteran reports treatment at VA facilities in Palo Alto, a Stockton clinic, and a Miller Park PTSD program (possibly a misspelling of Menlo Park). See Board hearing transcript, October 2009. The Appeals Management Center/RO is asked to ensure that all relevant VA treatment records have been associated with the claims file from the facilities described by the Veteran. Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration to obtain a copy of the decision and all medical records relied upon in conjunction with any successful claim for SSA disability benefits for this Veteran. 2. Contact the appropriate entity to determine the availability of private medical records of treatment for a suicide attempt from Englewood Hospital in Chicago, Illinois in 1967 or 1968, as described in October 2009 hearing testimony. If more precise dates are required to facilitate a meaningful search, the Veteran should be contacted for clarification. If available, records of the reported treatment should be obtained. 3. Ensure that all relevant VA medical records are associated with the claims file. In particular, all treatment records from November 2008 forward and any outstanding records from facilities described as Palo Alto, a Stockton clinic, and a "Miller Park" PTSD program (possibly Menlo Park) should be obtained. Duplicates of outpatient records currently contained within the claims file need not be resubmitted. 4. Any and all records obtained through the above development efforts must be associated with the claims file. If any identified record is unavailable, the RO should so specifically state, and the documentation used in making that determination should be set forth in the claims file. All attempts to obtain these records, including those which may ultimately prove unsuccessful, must be documented in the claims folder. 5. AFTER completion of the above development, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any currently diagnosed mental disorder. The Veteran's claims file and a copy of this remand should be made available to the examiner for review. All necessary studies and tests must be conducted. The examiner is specifically requested to: (a) State all currently diagnosed psychiatric disabilities, specifically identifying any personality disorder therein; (b) If any personality disorder is identified, opine whether there is disability resulting from a mental disorder that is superimposed upon such personality disorder; (c) Review the Veteran's service treatment records and lay statements to determine if symptoms reportedly experienced during service, specifically to include as described in the treatment notation dated October 19, 1966, are at least as likely as not (probability of 50 percent or greater) an early manifestation of any currently diagnosed psychiatric disorder; (d) Review the Veteran's reported history of suicide attempt in 1967 or 1968, to include any private medical record of contemporaneous treatment obtained pursuant to this remand; (e) Opine whether it is at least as likely as not that any currently existing psychoses (as defined by 38 C.F.R. § 3.384 and listed above) were present within one year from discharge from active military service, i.e. on or before July 25, 1968; (f) Opine whether any current psychiatric disability was otherwise incurred in or aggravated by active military service. Please provide an adequate supporting rationale for each opinion offered. 6. Thereafter, readjudicate the issues on appeal. If the determinations remain unfavorable to the Veteran, he and his representative must be furnished a Supplemental Statement of the Case which addresses all evidence associated with the claims file since the last Statement of the Case. The Veteran and his representative should be afforded the applicable time period in which to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2009) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). These claims 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.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).