Citation Nr: 1044293 Decision Date: 11/24/10 Archive Date: 12/01/10 DOCKET NO. 04-05 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for a personality disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Alsup, Counsel INTRODUCTION The Veteran served on active duty from June 1987 to October 1993. Service in Southwest Asia and award of the Combat Action Ribbon is evidenced in the record. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the Veteran's claim for service connection for service connection for a personality disorder. The Veteran disagreed and perfected an appeal. In April 2006, the Veteran and his representative presented evidence and testimony in support of the Veteran's claims at a hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the Veteran's VA claims folder. In September 2006, July 2007 and July 2009 decisions, the Board remanded the Veteran's claim for further evidentiary development. FINDINGS OF FACT 1. A preponderance of the evidence supports a finding that the Veteran's acquired psychiatric disorder is unrelated to his active duty service. 2. A preponderance of the evidence supports a finding that the Veteran's borderline personality disorder was not aggravated during his active duty service. CONCLUSIONS OF LAW 1. Entitlement to service connection for an acquired psychiatric disorder is not warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). 2. Entitlement to service connection for a personality disorder is not warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the U.S. Navy during the Persian Gulf War. He contends that events he witnessed and experienced during his active duty service caused his acquired chronic psychiatric disorder and aggravated his personality disorder beyond its natural progression. He seeks service connection for both. The Board will address preliminary matters and then render a decision on the issues on appeal. Stegall concerns In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (the Court) held that compliance with remand instructions is neither optional nor discretionary. The Court further held that the Board errs as a matter of law when it fails to ensure compliance with remand orders. As noted above, the Board remanded the Veteran's claim for further development. Specifically, the Board ordered VBA in the July 2009 remand to ensure all legally required notification to the Veteran had been provided and that the Veteran be provided a VA psychiatric examination to determine whether any psychological disorder had its onset during active service or was related to combat experiences, and whether any diagnosed personality disorder had been aggravated during service beyond its natural progression. Although VBA is required to comply with remand orders, it is substantial compliance, not absolute compliance that is required. See Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more that substantially complied with the Board's remand order"). The Board finds that VBA substantially complied with the July 2009 remand order because, as is more thoroughly discussed below, the record includes a notice letter to the Veteran dated October 2009 informing him of VA's duties to assist and notify, and because the record includes the February 2010 report of a VA psychologist who provided the requested opinions and diagnoses. Duties to notify and assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1). In this case, the Veteran received notice of the evidence necessary to substantiate a service connection claim, the steps VA would take to assist him in developing his claim, including providing him with a medical examination and obtaining pertinent records from VA, military and other federal and state agencies, and from private medical or employment providers, in letters dated May 2003, July 2007 and October 2009. The Veteran was further informed of how VA determines a disability rating and an effective date in letters dated March and September 2006, July 2007 and October 2009. The RO obtained the Veteran's service treatment records, VA treatment records, and Veteran Center records concerning his claims for service connection. The RO also provided the Veteran with psychiatric examinations including in December 2004, May 2009 and February 2010 by VA mental health practitioners. As is more fully discussed below, the Board finds that the medical evidence of record is sufficient to render a decision in this case. In sum, the Board finds that VA has satisfied its duties to notify and assist the Veteran in this case. The Board also notes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2010). As noted in the Introduction, the Veteran and his representative presented testimony in support of the Veteran's claims at an April 2006 hearing before the undersigned VLJ. The Board will therefore proceed to consideration of the merits of the Veteran's claims. Relevant law and regulations Service connection - in general Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). Service connection may 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2010). In order to establish service connection or service-connected aggravation for a present disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Analysis The Veteran contends that he has an acquired chronic disorder that has resulted from the general stress he was under while stationed in the Persian Gulf before and during the Persian Gulf War. He also generally contends that his personality disorder arose during active duty service and, alternatively, if pre- existing, was aggravated by his active duty service. As noted above, a claim for service connection requires evidence of a current disability, an event or injury or disease arising during service and evidence of a connection between the two. The Board will address the first Shedden element: evidence of a current disability. The record includes the following diagnoses during the pendency of the Veteran's claim for a chronic acquired psychiatric disorder: substance induced mood disorder with alcohol dependence; alcohol abuse unrelated to military service; and alcohol dependence unrelated to service. The record also includes the consistent diagnosis of borderline personality disorder. VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99 (1999), published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOPGCPREC 2-98 (1998), published at 63 Fed. Reg. 31,263 (February 10, 1998). The Board observes that the Veteran is not service-connected for any disability and thus cannot claim that he abused alcohol because of a service-connected disability. The Board finds that in order to satisfy the element for a current disability, the disability must be considered a disability capable of being service-connected. In this case, alcohol dependence does not meet that criterion. For those reasons, the Board finds that element (1) is not satisfied as to alcohol dependence or substance induced mood disorder. Similarly, generally personality disorders are not considered to be disabilities for the purposes of service connection. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2010); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996), and cases cited therein. In pertinent part, § 3.303(c) states: In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. Congenital or predevelopmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. The VA General Counsel has confirmed that congenital or developmental defects may not be service-connected because they are not diseases or injuries under the law and that only "if, during an individual's military service, superimposed disease or injury does occur," service connection may be warranted for the resulting disability. See VAOPGCPREC 82-90 (July 18, 1990). The General Counsel's opinion also provides guidance for determining whether a personality disorder is a disease or a defect. "Disease" has been broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. . . . On the other hand, the term "defects," viewed in the context of 38 C.F.R. § 3.303(c), would be definable as structural or inherent abnormalities or conditions which are more or less stationary in nature." In this case, the Board remanded the claim for an opinion regarding whether the Veteran's personality disorder was related to his active duty service. The examiner stated, in pertinent part, that: The Veteran has been diagnosed with borderline personality disorder and, by nature, personality disorders are not reactive disorders but developmental disorders with their origin in childhood and adolescence. It is not possible for this or any other veteran to develop a personality disorder in reaction to stressors of any kind during adulthood. DSM IV clearly indicates that personality disorders are, in fact, developmental in nature. Therefore, the Veteran's borderline personality disorder is not etiologically related to his service during adulthood. In sum, the Board finds that personality disorders are not "defects" because they are not structural or inherent abnormalities that are more or less stationary in nature, but rather are deviations from normal psychological behavior that are attributable to childhood or adolescent development and are, therefore, a "disease" for purposes of service connection under 38 C.F.R. § 3.303(c). For that reason, the Board finds that element (1) pertaining to the diagnosed personality disorder is also not satisfied. Because the Veteran seeks service connection for conditions for which compensation cannot be paid under VA regulations, his claims are not warranted. ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for a personality disorder is denied. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs