Citation Nr: 1033765 Decision Date: 09/09/10 Archive Date: 09/21/10 DOCKET NO. 08-36 426 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUE Entitlement to service connection for a personality disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from August to October 1998 and from January 2000 to March 2002. This matter comes to the Board of Veterans' Appeals (Board) from a July 2007 rating decision by which the RO denied, in pertinent part, service connection for a personality disorder. FINDING OF FACT The Veteran's personality disorder is not a disease or injury for VA compensation purposes, and it is not shown that such personality disorder was subject to a superimposed disease or injury in service. CONCLUSION OF LAW Service-connection for a personality disorder is not warranted. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303(c), 3.306, 4.9, 4.127 (2009); VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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 notice from VA 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA duty to notify was satisfied by way of a letters sent to the Veteran in November 2005 and May 2006 that fully addressed all three notice elements and was sent prior to the initial AOJ decision in this matter. The letters informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Notice consistent with the Court's holding in Dingess was provided in May 2006. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records, and the Veteran was provided a VA mental disorders examination in furtherance of his claim. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a pre-existing injury or disease in the line of duty, but no compensation shall be paid if the disability is a result of a veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Congenital or developmental defects such as personality disorders are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c). However, where during service a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted. VAOPGCPREC 82- 90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel opinion 01- 85 (March 5, 1985). Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 91, prohibits, effective for claims filed after October 31, 1990, [as in this case] payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse. Moreover, Section 8052 also amended 38 U.S.C.A. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(m), 3.301(d). Factual Background The Veteran's DD Form 214 shows that he had not completed his full term of service when discharged in March 2002. The DD Form 214 reflects that the reason for separation was a personality disorder. No Axis I psychiatric disorder was diagnosed in service.` On December 2002 VA mental disorders examination, the Veteran reported a childhood history of multiple behavioral problems to include vandalism, violence, and threats against others. With respect to service, the Veteran spoke of disciplinary problems. The Veteran discussed his highly conflictual marriage. At the time of the examination, he was in the midst of divorce proceedings, living alone, and permitted to see his two young children only occasionally. The Veteran spoke of his excessive alcohol consumption. He admitted anger and believed that he had been seriously wronged by his parents and the military. He discussed intense and chronic anger and that he could not tolerate stupidity. There was a history of cutting to relieve intense emotional pressure. He asserted that his treatment in service intensified his problems with anger and depression. Objectively, the Veteran's mood was angry and his affect was indignant. Although apologizing repeatedly, he used fowl language throughout the interview. He endorsed significant depression and suicidal rumination but said that people who killed themselves were weak and should probably die anyway. He discussed homicidal rumination but denied current intent. According to the examiner, who reviewed the claims file, the Veteran's thought processes were generally logical and goal directed but that insight was essentially absent and that judgment was compromised. The examiner rendered Axis I psychiatric diagnoses of alcohol abuse and partner relational problems and an Axis II diagnosis of an antisocial personality disorder. Discussion The Board is aware of the Veteran's antisocial personality disorder and does not dispute its presence. Congenital or developmental abnormalities such as personality disorders, however, are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. While service connection may be granted in limited circumstances for disability due to aggravation of a constitutional or developmental abnormality by superimposed disease or injury (see VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)), there is no probative medical evidence even suggesting that the Veteran's personality disorder was aggravated during service. As such, service connection for the Veteran's personality disorder is denied. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record. The Veteran's Axis I psychiatric disorders include alcohol abuse and partner relational problems. Service connection for the former is precluded under the rubric of willful misconduct. See 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. §§ 3.1(m) and (n), 3.301(d) (2009). As to partner relational problems, the Board finds no basis upon which to grant service connection because the Veteran does not claim, and the record does not otherwise indicate, that partner relational problems are etiologically linked to service. 38 C.F.R. § 3.303. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. (CONTINUED ON NEXT PAGE) ORDER Service connection for a personality disorder is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs