Citation Nr: 1131007 Decision Date: 08/22/11 Archive Date: 09/07/11 DOCKET NO. 07-01 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from November 1990 to December 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The appeal was forwarded to the Board from the New York, New York, RO. The appeal was remanded in January 2010 for additional evidentiary development which has now been completed. The claim has been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The Veteran entered service without any reported defects, infirmities, or disorders. 2. Service treatment records (STRs) reflect that the Veteran was treated for marital problems and a personality disorder, with borderline, antisocial, and dependent traits, which was exhibited by symptoms of impulsivity, chronic suicidal ideation, and poor anger control. 3. The Veteran is currently diagnosed only with a personality disorder. No competent medical opinion has related any Axis I psychiatric disability to the Veteran's time in service. 4. Personality disorders are not disabilities for compensation purposes under VA law. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304(f) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a Claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in April 2006 and March 2010) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) informing the Veteran about the information and evidence he was expected to provide; and (4) requesting the Veteran to provide any information or evidence in his possession that pertained to the claim. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the VCAA letters dated in April 2006 and March 2010 as mentioned above. Service Connection - In General In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. (West 2002 & Supp. 2009). "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2010). The Veteran contends that he has a psychiatric disability as a result of his time in service. Evidentiary Record No significant psychiatric history was noted upon enlistment examination for the Veteran in May 1990. During service, however, in January 1993, he was psychiatrically admitted to the hospital for marital problems and a personality disorder with borderline antisocial and dependent traits. It was noted at the time that he was counseled in his teens for suicidal ideation in the context of family turmoil. In March and April 1993, he was seen for stress management. In October 1993, he was seen for lacerations to both arms and wrists that required sutures. Post service VA records dated from 1998 through 2007 are of record. These records, other than the July 2006 psychiatric examination summarized below, essentially show treatment for other conditions. It was noted, however, on more than one occasion that the Veteran had a history of two suicide attempts. Also of record are private treatment records dated from 2004 and 2005. These records reflect that Claimant came to therapy for his son. They worked together as a family unit for each of the visits. The Veteran was extremely stressed as he had very little family support. The private social worker found him to be conscientious and "desperately trying to keep things together for him and his son who was difficult as had acted out quite a bit." These records do not reflect that the Veteran was treated for, or diagnosed with, any psychiatric condition. When examined by VA in July 2006, it was noted that the Veteran had a history of psychiatric problems which preceded military service. Specifically, at the age of 12 or 13, he reported receiving psychiatric attention for chronic suicidal ideation. During his childhood, he was disruptive, got into fights, had an episode of fire setting, and engaged in cruelty to animals. He had a history of suicidal gestures and conflictual relationships. Prior conflicts involving his ex-spouse led to a suicidal gesture, as well as a brief period of incarceration. Following review of the record and examination of the Veteran, the examiner opined that his current psychiatric condition, adult antisocial behavior (Axis I) with borderline personality disorders (Axis II) preceded service and was not worsened therein. In an October 2006 statement, the Veteran said that he had not tried to commit suicide prior to joining the military. In the Board's January 2010 remand, it was noted that while the Veteran was noted to have a preexisting personality disorder which was not aggravated during service when examined in 2006, there was no opinion provided as to whether inservice symptoms might have been the early onset of an acquired psychiatric diagnosis now diagnosed as adult antisocial behavior. Additional exam was requested. The requested VA psychiatric examination was conducted in July 2010. The examiner noted that the evaluation took place over three sessions. The Veteran's personal history included several suicide attempts, to include during service when he slashed his wrists after a fight with his wife. He disputed much of the clinical history as recorded on the 2006 examination. After review of the record and examination of the Veteran, it was opined by the examiner that the Veteran did not meet the criteria for an acquired psychiatric disorder pursuant to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) . See 38 C.F.R. § 3.304(f) (2010). The examiner further indicated that all current psychiatric symptoms were attributable to his personality disorder. Personality Disorders As described above, given the numerous psychiatric symptoms reported by the Veteran during the course of his appeal combined with the multiple diagnoses that had been attributed to those symptoms in 2010, the Board remanded the Veteran's claim to obtain medical opinion (in addition to that obtained in 2006) to determine the Veteran's current psychiatric diagnosis, to address the etiology of any such diagnosed condition, and to reconcile whether any acquired psychiatric diagnosis was present, in addition to his diagnosed personality disorder. After interviewing the Veteran and reviewing his claims file, the VA examiner found in 2010 that the Veteran did not currently meet the criteria for an Axis I psychiatric condition, concluding instead that the Veteran's psychiatric symptomatology was best explained by a diagnosis of a personality disorder. Significantly, for VA purposes congenital or developmental defects, refractive errors of the eye, personality disorders, and mental deficiency are not considered diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (2010); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996) (finding that a personality disorder is not the type of disease-related or injury-related defect to which the presumption of soundness can apply). As such, regardless of when the Veteran's personality disorder initially manifested, it may not be service connected. Any Other Psychiatric Disorder While the most current medical opinion of record concluded that the Veteran does not have a current Axis I psychiatric diagnosis, it is acknowledged that upon VA exam in 2006, he received an Axis I diagnosis of adult antisocial behavior. To this end, the Court of Appeals for Veterans Claims (Court) has held that the requirement that a Claimant have a current disability in order to establish service connection may be satisfied when a Claimant has the disability at the time he files a claim for VA disability compensation, or during the pendency of the claim, even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Given this ruling, service connection would be warranted in this case if at some point during the course of his appeal, the Veteran's psychiatric symptomatology met the criteria for an Axis I psychiatric disability, and that such a disability was incurred in service. As summarized above, the STRS do not show that the Veteran was ever diagnosed with a chronic psychiatric disorder while in service. Several psychiatric complaints were voiced therein, but only a personality disorder was diagnosed. None of his inservice complaints rose to the level that a psychiatric diagnosis was assigned. As noted above, the Veteran was subsequently assigned additional psychiatric diagnoses at one follow-up examination. Specifically, the diagnosis of an Axis I disorder (adult antisocial behavior) was made in 2006. In each case, the Board is required to provide adequate statement of reasons and bases for any conclusion that the presumption of soundness is rebutted by clear and unmistakable evidence. See Crowe v. Brown, 7 Vet. App. 238, 244 (1994). In rebutting the presumption of soundness, the Board must produce medical evidence in support of its conclusions. See Paulson v. Brown, 7 Vet. App. 466, 471 (1995). Thus, the temporary or intermittent flare-ups of a preexisting disorder are not sufficient to constitute aggravation. Rather, the underlying condition must have worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). As the Veteran was normal upon service entrance exam in 1990 and as he was later found to have only a personality disorder during service with preservice psychiatric counseling noted, and as a personality disorder is not a disease with the meaning of legislation providing compensation under 38 C.F.R. § 3.303(c) (see above), any discussion as to the Veteran's personality disorder is moot. However, with regard to the Axis I psychiatric disorder (adult antisocial disorder) diagnosed in 2006, this is a disease within the meaning of 38 C.F.R. § 3.303. While inservice records reflect inservice counseling in his teens and diagnosis of a personality disorder, there is no indication that he had a chronic mental disease at the time of entry onto active duty. It is noted that no acquired psychiatric disorder was noted during service or until many, many years thereafter. Specifically, adult antisocial behavior was noted until 2006, over 12 years after service. Moreover, no such disorder was found at the time of the most recent VA examination in 2010. Any antisocial disorder was not related to service. Therefore, the Board finds that the Veteran's report of onset of an acquired psychiatric disorder during service is not credible. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 200) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). The Veteran avers that his current psychiatric disorders were first manifested in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, while lay witnesses are competent to describe experiences and symptoms that result therefrom, because laypersons are not trained in the field of medicine, they are not competent to provide opinions relating to the diagnosis or etiology of diseases or disabilities. Id; Also see Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, the Board will give more credence to the medical evidence found in the record than any lay assertions. In weighing the Veteran's statements, treatment records, and examinations of record, the Board concludes that the preponderance of the evidence is against service connection for an acquired psychiatric disorder, to include adult antisocial behavior, if currently present. Service connection on a direct basis is not warranted as the no currently shown psychiatric disease was shown in service or for many years thereafter, nor has it been attributed to service by credible evidence. Accordingly, the claim is denied. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2009); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an acquired psychiatric disorder, to include a personality disorder and adult antisocial behavior, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs