Citation Nr: 1110162 Decision Date: 03/15/11 Archive Date: 03/30/11 DOCKET NO. 07-22 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a personality disorder. 2. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), adjustment disorder, and schizophrenia. 3. Entitlement to an increased rating for fracture of the left femur, currently evaluated as 20 percent disabling. 4. Entitlement to an increased rating for duodenal ulcer, currently evaluated as 20 percent disabling. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Young INTRODUCTION The Veteran had active service from March 1979 to March 1982 and from January 1983 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in November 2005, March 2009, and April 2010 issued by the Department of Veterans Affairs (VA) Regional Offices (ROs). In November 2005, the RO denied increased ratings for service-connected disabilities of a fracture of the left femur and duodenal ulcer. In March 2009, the RO denied the Veteran's claim for entitlement to service connection for PTSD. In April 2010, the RO denied service connection for adjustment disorder, schizophrenia, and a personality disorder. The Board notes that the RO adjudicated matters of the claimed psychiatric disorders as separate claims. However, as reflected on the title page, the Board considers the appeal involving psychiatric impairments as encompassing all diagnosed or claimed psychiatric disorders. The Board is cognizant of the recent decision of the United States Court of Appeals of Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court found that the Board erred in not considering the scope of the Veteran's claim for service connection for PTSD as including any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Consistent with Clemons and the current record, the Board has recharacterized the appeal involving psychiatric disorders as encompassing adjustment disorder, schizophrenia and PTSD. The Veteran is not prejudiced by the Board's action in this regard. The issues of entitlement to service connection for a psychiatric disorder, to include PTSD, adjustment disorder, and schizophrenia and entitlement to increased ratings in excess of 20 percent for fracture of the left femur and duodenal ulcer are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A personality disorder is not a disability for the purposes of VA disability compensation. CONCLUSION OF LAW A personality disorder is not a disability for which VA disability compensation is payable. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 4.9, 4.127 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his 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 Veteran 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 Veteran is expected to provide. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between a Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini, 18 Vet. App. 112. In this case, the RO provided pre-adjudication VCAA notice by letter dated in May 2009. The Veteran was notified of the evidence needed to substantiate the claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. Additionally, the Veteran was notified that VA would obtain VA records and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any such records on his behalf. The notice included the provisions for the effective date of the claim and for the degree of disability assignable. As for the content and timing of VCAA notice, the document substantially complied with the specificity requirements of Quartuccio, 16 Vet. App. 183 (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini, 18 Vet. App. 112 (pre-adjudication notice); and of Dingess, 19 Vet. App. 473 (notice of the elements of the claim). Relevant to its obligation to assist a claimant, VA has also made reasonable efforts to identify and obtain relevant records in support of the claim. 38 U.S.C.A. § 5103A (a), (b) and (c). The Veteran's service treatment records and reports of medical examination and history, as well as service personnel records, have been obtained. VA outpatient treatment records have been associated with the claims folder. The Veteran was afforded a VA psychiatric examination in November 2010, which addressed his personality disorder. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. II. Service Connection Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a 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(d). Personality disorders are not diseases or injuries within the meaning of the applicable legislation on VA compensation benefits, and service connection is prohibited for personality disorders. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; See Beno v. Principi, 3 Vet. App. 439 (1992). The Veteran asserts that he has a personality disorder for which he should receive compensation. He specifically asserts that he injured his head in a car accident in his second year in the service and the head injury that he incurred could be related to a personality disorder. In addition, he asserts that the severity of his leg and shoulder injuries from the car accident could cause mental anguish, as he was hospitalized for six months. A Medical Board evaluation dated in November 1983 diagnosed the Veteran with alcohol abuse and schizotypal personality disorder paranoid-like and depressive features. A January 1984 letter by the Department of the Army notified the Veteran of the intention to initiate action to effect his discharge from the United States Army because of a personality disorder. The Veteran's Form DD-214 indicates the narrative reason for separation was a personality disorder. Post-service VA examination in May 1984 reveals a diagnosis of mixed personality disorder. The Veteran also had a VA mental disorders examination in November 2010. The examiner commented that the Veteran did not meet the diagnostic criteria for a personality disorder based on his current behaviors and functioning. To the extent the Veteran is claiming service connection for a personality disorder, separate and apart from any other mental disability, VA compensation may not be paid for a personality disorder as it is specifically excluded as a disease or injury within the meaning of applicable legislation providing for VA compensation benefits. So, generally speaking, a personality disorder is not service connectable as a matter of express VA regulation. See 38 C.F.R. § 3.303(c), 4.9, 4.127 (2010). The only possible exception is if there is additional disability due to aggravation of the personality disorder during service by superimposed disease or injury. See Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514 (1993); VAOPGCPREC 11-1999 (Sept. 2, 1999); VAOPGCPREC 67-90 (July 18, 1990); and VAOPGCPREC 82-90. In the Veteran's case, his service treatment records document a diagnosis of a personality disorder. However, the evidence does not indicate that he has a mental disability that is superimposed on a personality disorder. Indeed, the most recent VA examination in November 2010 shows that the Veteran did not even meet the diagnostic criteria for a personality disorder. Because a personality disorder is not a disease or injury for compensation purposes, service connection is not permissible. Accordingly, as the disposition of his claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for a personality disorder is denied. REMAND The Board has determined that the issues of entitlement to service connection for a psychiatric disorder, to include PTSD, adjustment disorder, and schizophrenia and entitlement to increased ratings in excess of 20 percent for fracture of the left femur and duodenal ulcer require further development. The Veteran has claimed service connection for PTSD, schizophrenia, and adjustment disorder. His service records show he was discharged due to schizotypal personality disorder with paranoid-like and depressive features. Service treatment records show diagnoses of schizophreniform disorder, rule out chronic paranoid schizophrenia, rule out major affective disorder, and alcohol dependence in remission. A May 1983 in-service clinical record indicates that the Veteran reported experiencing visual hallucinations during service. Post-service VA outpatient treatment records show impressions of adjustment disorder, depression, and rule out PTSD from an auto accident years ago. In a July 2007 VA outpatient treatment report, it was noted that the Veteran had a positive PTSD screen. While the records show the Veteran has attended VA mental health outpatient PTSD group counseling sessions, there is no actual diagnosis of PTSD found in the record. The RO requested that the Veteran undergo a VA mental disorders examination. In the request, the examiner was asked to provide an opinion on whether the Veteran's current mental disorder of adjustment disorder or other disability diagnosed at the examination is/are related to military incurrence. It was further noted that the examiner should also address whether the Veteran's in-service mental problems were aggravated by military service since he reported hallucinations prior to service. The RO requested that if the examiner could not render an opinion without resorting to mere speculation, he or she should state so. It was noted in the request that the opinion should be accompanied by rationale and be rendered in the following format: "is caused by," "is most likely caused by," "is not caused by." A VA mental disorders examination was conducted in November 2010. The examiner who conducted the examination diagnosed the Veteran with dysthymic disorder with sensitivity to rejection for a long time but failed to provide an etiology opinion regarding the Veteran's psychiatric disorder and his military service. Therefore, the Board finds that the November 2010 examination is inadequate in this instance. Once VA undertakes the effort to provide an examination, an adequate one must be provided or the claimant must be notified why an adequate examination will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Veteran should be scheduled for a new VA mental disorders examination. In August 2005, the Veteran had a VA examination for bones to assess the severity of his service-connected left femur disability and a VA examination for stomach, duodenum, and peritoneal adhesions to assess the severity of his service-connected duodenal ulcer disability. Since the time of the August 2005 VA examinations, the Veteran has indicated a worsening of symptoms associated with his left femur and duodenal ulcer disabilities. In this regard, the Board observes that it has been more than five years since these disabilities were evaluated by VA, and as indicated above, the Veteran has stated that his symptoms have increased in severity since the August 2005 VA examination. Therefore, the Board concludes that new examinations are necessary to evaluate the current severity of this service-connected disabilities. See VAOPGCPREC 11-95 (April 7, 1995); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Since the claims folder is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, in order to give the Veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain and associate with the claims folder any VA treatment records since September 2009 to the present. 2. The RO/AMC should schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any psychiatric disorder, to include PTSD, adjustment disorder, and schizophrenia. The rationale for any opinions expressed should be provided. The examiner should review the claims folder and should note that review in the report. Specifically the examiner should provide the following information: a) Provide a diagnosis for all psychiatric disorders that are appropriate, pursuant to DSM-IV, to include whether or not each criterion for a diagnosis of PTSD pursuant to DSM-IV is met. b) For each diagnosed psychiatric disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the psychiatric disorder is related to the Veteran's periods of active service, to include his in-service treatment for schizophreniform disorder, rule out chronic paranoid schizophrenia, rule out major affective disorder, and alcohol dependence in remission. The examiner must consider lay statements regarding in-service occurrence of an injury. Dalton v. Nicholson, 21 Vet. App. 23 (2007). c) Also, provide an opinion as to whether there is clear and unmistakable evidence that any in-service psychiatric problems pre-existed service as reported by the Veteran. If so, is it at least as likely as not (50 percent probability or greater) that any such psychiatric disorders that pre-existed service were aggravated (increased in disability beyond the natural progress of the condition) during the Veteran's periods of active service? 3. The RO/AMC schedule the Veteran for an orthopedic VA examination. The claims folder must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify all residuals attributable to the Veteran's fracture of a left femur. The examiner should identify whether the service-connected left femur fracture causes weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy. If the severity of these manifestations cannot be quantified, the examiner should so indicate. Any shortening of bone height, malunion or other deformity caused by the fracture, must be recorded, to include the measurement of such loss in inches or centimeters. The examiner should report the range of motion measurements for the left knee and left hip, in degrees, and any pain, weakened movement, excess fatigability or incoordination on movement should be noted. The examiner should also address whether there is likely to be additional range of motion loss due to any of the following: (1) pain on use, including pain during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or when the left knee and left hip are used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. The examiner should state whether there is any evidence of recurrent subluxation or lateral instability of the left knee, and if so, to what extent. The examiner must provide a comprehensive report, including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. The RO/AMC should also schedule the Veteran for a VA examination to assess the current severity of his duodenal ulcer disability. The claims folder must be made available to the VA examiner, and the examiner should review the claims folder prior to the examination. All tests and studies deemed necessary should be accomplished, and all special tests and clinical findings should be reported. The examination should include findings regarding any manifestations of duodenal ulcer, including any anemia, weight loss, vomiting, recurrent hematemesis, or melena, and overall severe or definite impairment of health and the frequency of any symptoms. All findings should be reported in detail, and the examiner should provide the rationale for any opinions given. 5. If after readjudication of the remanded claims, they continue to be denied, send the Veteran and his representative a supplemental statement of the case and give them an opportunity to submit additional evidence and/or argument in response before returning the claims folder to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs