13-02 309
13-02 309
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served active duty Aug 1983–Feb 1988; discharged for personality disorder. Claim seeks service connection for acquired psychiatric disorder (PTSD, dysthymia, personality disorder).
- Prior denials: PTSD denied in Sept 2009; dysthymia and mixed personality disorder denied in June 2000. Service personnel records received in June 2009 reflected in-service counseling and discharge circumstances.
- Board applied 38 C.F.R. § 3.156(c) to reconsider earlier decisions because newly associated service records are relevant; claim was recharacterized as entitlement to service connection for an acquired psychiatric disorder per Clemons.
- Record includes a November 2012 VA exam (diagnosed personality disorder NOS and depressive disorder NOS; concluded symptoms preexisted service but lacked adequate rationale) and a May 2016 private psychological evaluation (diagnosed PTSD, mixed personality disorder, dysthymia; opined service aggravated preexisting conditions but did not apply the ‘‘clear and unmistakable’’ standard).
- Board found existing opinions inadequate and identified outstanding pre-service and post-service VA and non-VA treatment records (Tripler, William Beaumont, Kirkland, Biloxi and Denver VA records; psychiatric hospitalizations in 1993, 2000, 2003) that must be obtained.
- Board REMANDED to the AOJ for record development (obtain specified VA and non-VA records), a new VA psychiatric examination applying DSM‑IV, and readjudication; no merits decision reached.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Veteran is entitled to service connection for an acquired psychiatric disorder (PTSD, dysthymia, personality disorder) | Veteran asserts psychiatric disorder began or was aggravated by service; submitted private opinion supporting aggravation | VA relied on prior exam concluding preexistence and lack of service relation; RAO seeks further development | Remand for further development and a new VA exam; no final decision on entitlement |
| Whether prior personnel/service records warrant reopening/reconsideration of earlier denials | Veteran points to newly associated service records (in-service counseling, discharge reasons) relevant to original claim | VA must follow §3.156(c) when relevant service records are later associated | Board applied §3.156(c) and recharacterized claim for de novo review |
| Whether existing medical opinions are adequate to decide causation/aggravation | Veteran's private psychologist opines aggravation but did not apply C&U standard or fully reason | VA examiner’s 2012 opinion lacked adequate rationale addressing C&U standard and relevant records | Both opinions found inadequate; remand ordered for a new exam with requested rationale |
| Whether outstanding VA and non-VA records must be obtained before adjudication | Veteran identifies pre-service and post-service treatment locations and non-VA hospitalizations | VA had not yet obtained all such records | Board ordered collection of specified VA and non-VA records and two attempts to obtain non-VA records; allowed Veteran to provide records too |
Key Cases Cited
- Clemons v. Shinseki, 23 Vet. App. 1 (recognition that claims may be recharacterized to encompass theories reasonably raised by the record)
- Wagner v. Principi, 370 F.3d 1089 (Fed. Cir.) (explains presumption of soundness and government’s burden to prove a preexisting condition by clear and unmistakable evidence)
- Bell v. Derwinski, 2 Vet. App. 611 (VA duty to obtain relevant records and develop claims)
- Kutscherousky v. West, 12 Vet. App. 369 (Veteran may submit additional evidence after remand; Board must afford opportunity to submit evidence)