Citation Nr: 1313099 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 10-47 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a personality disorder. 2. Entitlement to service connection for an acquired psychiatric disability, to include bipolar disorder with psychotic episodes and major depression; generalized anxiety disorder; and schizoaffective disorder; but to exclude posttraumatic stress disorder (PTSD). - ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from August 2003 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The November 2009 rating decision denied service connection for bipolar disorder with psychotic episodes, major depression, and personality disorder, not otherwise specified. The Veteran had previously been denied service connection for PTSD and schizoaffective disorder in an August 2009 rating decision. In January 2010, the Veteran filed a reconsideration request/ notice of disagreement with the "rating decision dated 11-9-2009 which denied me service connection for bipolar disorder with psychotic episodes, major depression and personality disorder." A March 22, 2010, report of contact reflects that the Veteran wished to file a new claim for generalized anxiety disorder. In June 2010, VA received a letter from the Veteran's representative in which he stated that "[i]n light of the pending appeal that covers three psychiatric disorders (not otherwise specified) it will be unnecessary to introduce yet another psychiatric disability at this time. The claimed anxiety disorder (3-22-2010) and Posttraumatic Stress Disorder (PTSD) share the same etiology." In a handwritten note at the bottom of the letter, the representative added that "[t]his is not a [notice of disagreement] for PTSD!" Two statements of the case were issued on the same day in October 2010. One lists the issues of entitlement to service connection for PTSD and schizoaffective disorder, while the other lists the issue of entitlement to service connection for bipolar disorder with psychotic episodes, major depression, and personality disorder, not otherwise specified. In December 2010, VA received a substantive appeal from the Veteran. He checked the box indicating that he wished to appeal all of the issues on the statement of the case and any supplemental statements of the case. In a personal statement written on this form, he listed the issue as "service connection for bipolar disorder with psychotic episodes, major depression." The RO certified for appeal the issue of service connection for "bipolar disorder with psychotic episodes, major depression and personality disorder, [not otherwise specified]." The Board interprets the June 2010 clarification memorandum to mean that the Veteran believed he had three psychiatric disorder claims - (1) bipolar disorder with psychotic episodes, major depression and personality disorder, not otherwise specified, (2) generalized anxiety disorder, and (3) schizoaffective disorder - on appeal. The Board notes that the issue of generalized anxiety disorder was not specifically discussed in a rating decision or statement of the case, and that the Veteran does not appear to have filed a substantive appeal with the denial of the schizoaffective disorder claim. The Board, however, has broadened the bipolar disorder issue to more broadly encompass other acquired psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). This issue does not, however, extends to the PTSD claim, as the June 2010 statement from the Veteran's representative expressly states that that document was not a notice of disagreement with the PTSD denial. The issue has thus been recharacterized as reflected above. Additionally, the Board has separated the issue of entitlement to service connection for a personality disorder from the acquired psychiatric disability issue, as will be discussed in more detail below. A March 2010 report of contact notes that the Veteran had requested to have a local hearing. He withdrew this request in writing, through his representative, in the June 2010 memorandum. The issue of entitlement to service connection for an acquired psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's personality disorder is not a disability for which service connection may be awarded. CONCLUSION OF LAW The Veteran's personality disorder is not a disease that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303(c), 4.9, 4.127 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)). However, in Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001), the Court held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. See also VAOGCPREC 5-2004, Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001), and Mason v. Principi, 16 Vet. App. 129, 132 (2002) (stating that the VCAA is not applicable 'because the law as mandated by statute and not the evidence is dispositive of the claim'). The Board finds in the instant case that resolution of the issue on appeal is based on the operation of law and that the VCAA is not applicable. See Holliday v. Principi, 14 Vet. App. 280, 282-83 (2001) (finding that the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim). II. Service Connection The Veteran has claimed entitlement to service connection for a personality disorder that he essentially contends originated in or was aggravated by service. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, such as psychosis, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following discharge. 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Personality disorders are considered congenital or developmental defects and, therefore, are not diseases or injuries for the purposes of service connection. 38 C.F.R. § 3.303(c), 4.9 (2012); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, if a disease or injury is superimposed over the congenital or developmental defect during service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990). To the extent that the Veteran may believe he has an acquired psychiatric disability that was superimposed over his personality disorder, the determination of whether service connection is warranted for any such disability is encompassed by the issue that has been remanded below. With respect to the claimed personality disorder itself, although the Veteran clearly has a personality disorder for which the Veteran sought treatment in service, a personality disorder is not a disease for compensation purposes. 38 C.F.R. §§ 3.303, 4.127. Thus, service connection for a personality disorder is prohibited as a matter of law. Accordingly, entitlement to service connection for a personality disorder is not warranted. ORDER Entitlement to service connection for a personality disorder is denied. REMAND The Veteran has also claimed entitlement to service connection for an acquired psychiatric disability. He essentially contends that he incurred a psychiatric disability as a result of his military service, or that any preexisting psychiatric disability was aggravated by service. The Veteran's service treatment records reflect that he was found to be clinically normal psychiatrically when examined for enlistment in June 2003. In February 2004, the Veteran received psychiatric evaluation while on the USS John F. Kennedy and was diagnosed as having Major Depressive Disorder, recurrent, without full inter-episode recovery superimposed on Dysthymic Disorder, and rule out ADHD, predominately inattentive type. In March 2004, the Veteran's diagnoses were revised to ADHD, predominately inattentive type and Dysthymic Disorder. In July 2004, the Veteran underwent a service Medical Board evaluation. This report shows that the Veteran was hospitalized at the Naval Hospital in Jacksonville, FL in June 2004. He was initially seen in the Emergency Department at the Naval Hospital due to a hand injury; however a psychiatric consultation led to admission due to bizarre behaviors, loose associations and paranoia. It was also reported that in May 2004, the Veteran was evaluated by a psychologist from the U.S.S. Kennedy due to concerns of increased irritability, mood swings, and symptoms of depression. At this time, the Veteran gave a history of undergoing inpatient psychiatric hospitalization around the age of 15 due to being stabbed by his step father. He reported symptoms of depression and periods of substance abuse. The Veteran's mother was interviewed and she denied that the Veteran had been psychiatrically hospitalized. Based on evaluation of the Veteran, including an interview with the Veteran's mother, the Veteran was diagnosed as having a bipolar disorder, most recent episode manic with mood congruent psychotic features, alcohol dependence with physiologic dependence, cannabis abuse, and antisocial personality traits. All of these conditions were found to exist prior to the Veteran entering service. The personnel records on file shows that the Veteran was disciplined for various infractions. In 2005, the Veteran was awarded Social Security Disability benefits due to schizophrenic, paranoid and other functional psychotic disorders, as well as for anxiety related disorder. The Veteran underwent a VA mental disorders examination in August 2009. The resulting examination report diagnoses chronic depressive disorder, not otherwise specified. The examiner opined that "[c]learly, the veteran's psychiatric difficulties started before he enlisted." In terms of aggravation, however, he was "unable to say whether his depressive symptoms got worse while he was in the service without resorting to speculation." The Court has offered specific guidance on medical opinions in which examiners indicated that they are unable to render an opinion. Jones v. Shinseki, 23 Vet. App. 382 (2010). The Court wrote that when a medical examiner concludes that he or she is unable to provide a nexus opinion, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability to render an opinion. Here, the examiner has not adequately explained his inability to opine on the aggravation question without resort to speculation. Thus, a remand is required in order to obtain an adequate opinion. Furthermore, a remand for a new opinion is also necessary in order to obtain an opinion that allows VA to determine whether the presumption of soundness has been rebutted in this case. In other words, whether there is clear and unmistakable evidence that the Veteran entered service with a pre-existing psychiatric and whether there is clear and unmistakable evidence that such disability was not aggravated in service. If it is determined that the Veteran did not enter service with a pre-existing psychiatric disability, it must be determined whether any of his current psychiatric disabilities found are related to service. The Board observes that the Veteran reports that he receives psychiatric treatment from Durham and Charlotte VAMCs and that he received psychiatric hospitalization from Durham VAMC, Presbyterian Hospital in Charlotte and Carolina Regional Medical Center. Appropriate steps should be made to ensure that all relevant treatment and hospitalization records are obtained from these facilities. It appears that the most recent VA medical evidence of record is from February 2010. While this claim is on remand, the RO should obtain any outstanding records of the Veteran's ongoing VA medical treatment. Moreover, the Veteran reported in service that he received psychiatric hospitalization prior to service. He should be given an opportunity to submit this evidence or provide information so that VA can assist him in obtaining this information for the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and have him identify all treatment facilities that have treated him for psychiatric problems since his August 2003 service discharge. Thereafter, obtain copies of all of the Veteran's outstanding VA medical records that are not already of record, and ensure that those copies are associated with the claims file. Specifically, ensure that all psychiatric treatment and hospitalization reports from Durham and Charlotte VAMCs, Presbyterian Hospital in Charlotte, and Carolina Regional Medical Center are associated with the claims file. 2. Contact the Veteran and ask him to identify all psychiatric treatment/hospitalization that he had prior to service. Thereafter, appropriate steps should be taken to obtain the identified records. 3. Following completion of the above, arrange for the Veteran to undergo a VA examination to determine the nature and etiology of any current acquired psychiatric disabilities. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary should be conducted. All findings should be reported in detail. The examiner should address the following: a) Identify all current psychiatric diagnoses, including the psychiatric diagnoses found in treatment and hospitalization reports that are located in the claims file. b) For each diagnosed psychiatric disability found on examination and/or in the record, state whether there is clear and unmistakable evidence that such disability existed prior to service. If clear and unmistakable evidence is found concerning this, the examiner should specifically identify the evidence. c) For each diagnosed psychiatric disability found on examination and/or in the record, state whether there is clear and unmistakable evidence that such disability was NOT aggravated by service. If clear and unmistakable evidence is found concerning this, the examiner should specifically identify the evidence. d) If (b) and (c) is addressed in the affirmative for any disability, state whether the pre-existing disability underwent an increase in disability. If an increase in disability is found state whether there is clear and unmistakable evidence that such increase was due to the natural progress of the condition. e) If (b) and (c) is addressed in the negative, for each psychiatric disorder diagnosed please state whether it is at least as likely as not (at least a 50-50 probability) that the psychiatric disability was incurred in or related to service, including any incident of service. A discussion of the complete rationale for all opinions expressed, including reference to the pertinent service treatment records, pre and post service treatment records, should be included in the examination report. 4. After the development requested above has been completed, again review the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs