BVA9505264 DOCKET NO. 90-26 682 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a mental condition due to aggravation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and N.G. ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from November 1966 until November 1968. The Board of Veterans' Appeals (Board) denied service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder, in March 1987, August 1989 and September 1990. The veteran appealed to the United States Court of Veterans Appeals (Court). In March 1993, the Court affirmed the Board's determination with respect to service connection for post- traumatic stress disorder, but remanded the case to the Board on the issue of whether there had been service aggravation of a pre- existing mental condition. REMAND The service medical records reflect that the veteran was seen in psychiatric consultation between April and October 1967. He was described as showing situational maladjustment and being rather immature, dependent, and unstable. Medication was prescribed for his symptoms. His complaints included anxiety, tenseness and headaches. Letters from various persons indicated emotional instability prior to service. In January 1968, it was pointed out that a number of psychiatrists had been consulted about the veteran's case. The chief of the Mental Health Hygiene Consultation Division reported that the veteran had a severe character and behavior disorder but that "he reveals no evidence of an illness which would qualify him for medical separation." It is acknowledged that the veteran was mildly retarded when he entered service. His preservice development status is a matter of record. The postservice clinical data commence in the record from 1976 and show that the veteran was seen for complaints primarily related to work-connected back injuries which eventually developed into a chronic pain disorder. He was noted to have sought emergency medical attention January 1978 for complaints of excessive nervousness. Diagnoses of nervousness, etiology undetermined, and question of hyperthyroid were rendered. It was recorded that he refused to have blood drawn for thyroid tests at that time. The record reflects that the veteran worked on a regular basis until late 1981. He was subsequently awarded nonservice- connected pension benefits, effective November 1981, for musculoskeletal disability. A statement dated in March 1984 was received from a private social worker indicating that the veteran had presented with multiple complaints of physical ills which he believed had begun since being in Vietnam. It was noted that he described becoming increasingly withdrawn after service discharge and admitted to symptoms such as racing thoughts, paranoid ideation, ideas of reference and phobias. The record reflects that he continued in weekly group therapy displaying and expressing additional psychiatric symptomatology. Subsequently received were reports from a number of private and Department of Veterans Affairs (VA) practitioners providing opinions as to the origins of the veteran's postservice and current psychiatric status and symptomatology. The Court particularly referred to Dr. Milton Hershberg's psychiatric evaluation of April 1988 in advancing its case for further development of the record. It should be noted that 38 C.F.R. 3.303 provides that personality disorders are characterized by developmental defects or pathological trends in the personality structure manifested in a lifelong pattern of action or behavior...which are the basis of the service diagnosis will be accepted as showing preservice origin. Congenital or developmental defects...personality disorders and mental deficiency as such are not diseases within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. 3.303(c) (1994). It should be reiterated that service connection for post- traumatic stress disorder was denied by the Board in a decision of September 1990, and the Court has upheld this determination. The Court stated, however, that the veteran did not have the opportunity to have the claim adjudicated of whether or not there was aggravation of his pre-existing mental condition on account of service, to include whether an acquired psychiatric disorder had been superimposed upon the former. An essential question thus before the Board is whether or nor there is any evidence of any chronic acquired psychiatric disorder prior to or during service. Under the circumstances of this case the Board is of the opinion that additional develop is necessary prior to final disposition of the issue on appeal. The case is therefore REMANDED to the RO for the following: The claims folder should then be referred to a panel of two VA psychiatrists who have not previously examined the veteran for a complete review of the record to provide a detailed and comprehensive opinion as to the questions below. The claims folder and a copy of this remand should be made available to the examiners for use in the study of this case. The resulting clinical report should be typed. The examiners may, at their option, require the veteran to submit to a current VA psychiatric evaluation. The examiners are requested to refer to DSM-I and DSM- III, as applicable. A.. What psychiatric or "mental" disorder(s) did the veteran have in service and how would each have been characterized under DSM-I which was in effect at that time; specifically, did he suffer from mental deficiency, a personality disorder, and/or an acquired psychiatric ailment? Did any exist prior to service? B. How would the veteran's current ailment(s) be clinically characterized in service under DSM-III? C. What is the current correct psychiatric diagnosis(es) applicable to the veteran? What is the relationship, if any, between whatever psychiatric disorder(s) are currently in existence and the veteran's military service? The supporting rationale for all opinions is necessary. Following completion of the requested development, the agency of original jurisdiction should again consider the veteran's claim and determine whether nor not it may be granted. If action remains adverse to the appellant, he should be furnished a supplemental statement of the case and be given the opportunity to respond. The case should the be returned to the Board for further appellate consideration. No action on the part of the veteran is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition os the issue on appeal. BRUCE KANNEE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).