Citation Nr: 0811171 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-24 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a personality disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from October 1974 to March 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO). In his July 2004 VA Form 9, substantive appeal, the veteran requested a videoconference hearing before the Board. A Travel Board hearing was scheduled for July 2006; however, prior to the scheduled date, the veteran contacted the RO via telephone to cancel the hearing and declined rescheduling. FINDING OF FACT The veteran has a personality disorder; there is no competent (medical) evidence that he has an acquired psychiatric disability that was superimposed on the personality disorder (including in, or due to, service). CONCLUSION OF LAW Service connection for a personality disorder is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R.§§ 3.303(c), 4.9, 4.127 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). An April 2004 letter and two letters in August 2004 explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, the evidence he was responsible for providing, and advised him to submit any evidence or provide any information he had regarding his claim. The September 2004 rating decision and a July 2005 statement of the case outlined what the evidence showed and governing legal criteria, and explained the reason for the denial of the claim, specifically including that a personality disorder, of itself, was not a compensable disability. He has had ample opportunity to respond/supplement the record, and is not prejudiced by any technical notice deficiency (including in timing) that may have occurred earlier in the process. In compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), a March 2006 letter informed the veteran of disability rating and effective date criteria. Any timing defect of this notice is nonprejudicial, as the evaluation of a disability or effective date of an award are not matters for consideration herein. The veteran's service medical records (SMRs) are associated with his claims file, and pertinent treatment records have been secured. The RO arranged for a VA examination in November 2004. The veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. B. Factual Background The veteran's SMRs show that his October 1974 report of medical history and service entrance examination report are silent for findings, complaints, treatment, or diagnoses relating to a psychiatric disorder. He was treated in May 1975 following a suicide attempt. Acute situational reaction manifested by self-destructive behavior was diagnosed; precipitating factors were stress and marital problems. In November 1975, he was again seen, by a psychiatrist, following threats to kill his wife and allegedly attacking a Hawaiian police department officer with a butter knife. Acute situational stress reaction with poor impulse control was diagnosed. In November 1978, the veteran was hospitalized for over two weeks for mental health problems. During this hospitalization, it was noted that in addition to the two instances discussed above, the veteran had also been seen by Community Mental Health Activity and undergone complete psychological testing, during which suspicion of borderline thought disorder with strong characterological disturbance was noted. Upon discharge, mixed personality disorder, chronic, severe, was diagnosed. A March 1979 service personnel record documents that the veteran was separated from service due to "unsuitability - personality disorder." Nolachuckey-Holston Area Mental Health Center (NHAMHC) private treatment records from September to October 1987 show that the veteran was seen due to domestic difficulties with his daughter and also having been charged with assault and battery. It was noted that he was seen previously, in 1984, when mixed personality disorder and adjustment disorder with mixed emotional features was diagnosed. In September 1987, a psychiatrist gave a diagnosis of personality disorder not otherwise specified; paranoid schizophrenia to be ruled out. On Minnesota Multiphasic Personality Inventory (MMPI) testing in October 1987, the psychologist noted that "[i]ndividuals with [the veteran's] profile usually receive a diagnosis of personality disorder." The veteran was seen at the NHAMHC again from February to August 2001. Private treatment records reflect that adjustment disorder with mixed disturbances of emotions and conduct was diagnosed. His prior diagnosis of personality disorder was also noted and discussed during therapy sessions. October 2003 to January 2004 private treatment records from Dr. B.M. are silent for complaints, findings, treatment, or diagnosis relating to psychiatric disability. VA outpatient treatment records from October 2000 to October 2004 show that the veteran was initially seen in October 2000 due to marital conflict. He was advised that the VA did not provide domestic violence counseling. In January 2004, schizoid personality disorder with paranoid features was diagnosed. On November 2004 VA examination, the examiner found that, in general, the veteran's affect was constricted and he appeared anxious. He did not reveal suicidal or homicidal thoughts, but presented with depressed mood, manifested by low energy. He manifested paranoid ideation consisting of a continuing narrative with persecuting theme, and described impaired impulse control resulting in numerous legal charges of assault. His thought process was goal-directed and coherent, though there were signs of psychosis and auditory hallucinations during the mental status exam. Based on these findings, the examiner offered a diagnosis of schizoid personality disorder, and opined that it was not related to the veteran's active duty service. Rather, she found that it preexisted from childhood based upon the veteran's psychiatric history. In a March 2008 information hearing presentation, the veteran's representative argued that the veteran's personality disorder did not preexist from childhood as he was found fit for purposes of enlistment upon service entrance physical examination, and that an opinion by a panel of psychiatrists should be sought to determine "whether the veteran's difficulties in service represented prodromal schizophrenia or other psychosis." C. Legal Criteria and Analysis Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Hickson v. West, 12 Vet. App. 247 (1999). A disorder also may be service connected if the evidence of record shows that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third elements discussed above. See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Service connection cannot, by regulation, be granted for personality disorder. A personality disorder is defined by regulation as a congenital or developmental disorder. Developmental disorders are excluded, by regulation, from the definition of disease or injury for which veteran benefits are authorized if incurred or aggravated in service. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Hence, regardless of the character or the quality of the evidence the veteran may submit, a strictly developmental defect, to include as pertinent here a personality disorder, cannot be recognized as a compensable disability, and the claim of service connection for such disability must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service connection for a personality disorder is permissible in very limited instances (only) where there is competent medical evidence indicating that such disorder was aggravated during service by a "superimposed" disease or injury. 38 C.F.R. §§ 4.9, 4.127; see Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Beno v. Principi, 3 Vet. App. 439, 441 (1992). The competent (medical) evidence of the record shows that the veteran's mental health issues in-service were due to his personality disorder rather than to a superimposed acquired psychiatric disorder. His SMRs reflect that he had two instances of acute situational stress reactions in service, both as a result of marital strife. In November 1978, chronic and severe mixed personality disorder was diagnosed, and he was discharged from service as a result of this condition. A chronic acquired psychiatric disability was not found in service, and no postservice treatment provider/examiner has opined that the manifestations in service reflected superimposed acquired psychiatric disability. Postservice treatment records consistently show diagnoses of a personality disorder. In September 1987, personality disorder not otherwise specified was diagnosed. On October 1987 MMPI, it was noted that individuals with profiles like the veteran's received a diagnosis of personality disorder. In February 2001, adjustment disorder with mixed disturbances and conduct was diagnosed. In January 2004, schizoid personality disorder with paranoid features was diagnosed. On November 2004 VA examination, schizoid personality disorder was diagnosed. Because these diagnoses are all of personality disorders (and do not include superimposed acquired psychiatric disability), the disabilities diagnosed postservice are not compensable. See also DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 558-59 (31st ed. 2007) (defining "schizoid personality disorder" as a personality disorder marked by detachment from social relationships and a restricted range of emotional experience and expression). The veteran's representative argues, in essence, that the veteran may have an acquired psychiatric disability, and that manifestations in service were early signs of such disability. The representative requests a VA examination for the purpose of securing a medical opinion to that effect. However, VA has already arranged for the veteran to be examined, and such examination did not find any acquired (non-personality disorder) psychiatric disability. The examiner reviewed the veteran's claims file, and described evaluation findings in detail. The Board finds no reason to question her conclusions. Significantly, the veteran has not submitted any competent (medical) evidence suggesting that he has a mental condition other than a personality disorder. Because the veteran's representative is a layperson, her own musings that the veteran has a compensable psychiatric disability that became manifest in service are not competent evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In light of the foregoing, the veteran's claim of service connection for a personality disorder must be denied. The Board has considered the benefit of the doubt doctrine; as the preponderance of the evidence is against his claim, that doctrine does not apply. ORDER Service connection for a personality disorder is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs