Citation Nr: 1319430 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 10-21 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include schizoid personality disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from July 2007 to April 2008. He also served in the U.S. Army Reserve and Pennsylvania Army National Guard. He served on active duty in Iraq from August 2007 to April 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which, in pertinent part, denied service connection for PTSD, residuals of traumatic brain injury (TBI), and an eye disability (claimed as detached retina). This case was previously before the Board in September 2012. Based on the evidence then of record, and pursuant to the United States Court of Appeals for Veterans Claims' (Court's) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board broadened the scope of the Veteran's psychiatric claim and recharacterized it as two issues: (1) entitlement to service connection for PTSD, and (2) entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include schizoid personality disorder. The Board granted service connection for PTSD and residuals of TBI, and remanded the remaining issues on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After taking further action, the AMC, in a March 2013 rating decision, granted service connection for an eye disability (diagnosed as diabetic macular edema). With respect to the Veteran's psychiatric claim, the AMC denied service connection for an acquired psychiatric disorder other than PTSD, to include schizoid personality disorder, and returned that matter to the Board. That issue is now presented for further appellate consideration. During a Board hearing held in March 2012, the Veteran's representative raised issues pertaining to the Veteran's entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) and his entitlement to service connection for joint pain and diarrhea/incontinence of bowels. Inasmuch as those issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ) in the first instance, the Board does not have jurisdiction to consider them. They are referred to the AOJ for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) and 38 C.F.R. § 20.900(c). FINDINGS OF FACT 1. The Veteran is service connected for PTSD. 2. The Veteran has acquired psychiatric disability(ies) other than PTSD, most recently diagnosed as depressive disorder, not otherwise specified (NOS), which is secondary to, and cannot be separated from, his service-connected PTSD. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for establishing service connection for an acquired psychiatric disorder other than PTSD, most recently diagnosed as depressive disorder, NOS, have been satisfied. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally speaking, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection is also warranted where the evidence shows that a chronic disability or disorder is proximately due to, or the result, of an already service-connected disability. 38 C.F.R. § 3.310 (2012). Under applicable law, personality disorders are ordinarily not considered diseases or injuries for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2012); Beno v. Principi, 3 Vet. App. 439, 441 (1992). However, if a veteran develops an organic personality disorder as a result of a service-connected medical condition-such as head trauma, epilepsy, etc.-service connection may be granted for the disorder under 38 C.F.R. § 3.310(a). See, e.g., 38 C.F.R. §§ 4.127; Schedule for Rating Disabilities; Mental Disorders, 61 Fed. Reg. 52,695, 52,698 (Oct. 8, 1996) (Supplementary Information). In the present case, the evidence of record shows that psychiatric disorders other than PTSD have been diagnosed. On VA examination in March 2009, for example, the Veteran was given a diagnosis of schizoid personality disorder with avoidant, dependent, and borderline features. Private reports of record reflect additional diagnoses of bipolar affective disorder (BAD); chronic adjustment disorder with mixed mood; attention-deficit hyperactivity disorder (ADHD); and cognitive disorder, NOS, secondary to traumatic brain injury (TBI). In September 2012-after granting service connection for PTSD-the Board remanded the remainder of the Veteran's psychiatric claim for additional development; specifically, to obtain an examination and medical opinion as to whether it was at least as likely as not (i.e., whether it was 50 percent or more probable) that the Veteran had an acquired psychiatric disability other than PTSD, to include schizoid personality disorder, that was attributable to service or his already service-connected PTSD. The Veteran underwent the requested examination in November 2012. After examining the Veteran, and performing psychological testing, the examiner (a psychologist) concluded that the Veteran did not have a schizoid personality disorder. The examiner did, however, diagnose the Veteran with an acquired psychiatric disorder other than PTSD; namely, depressive disorder, NOS. With respect to that diagnosis, the examiner opined, "The depression is secondary to and cannot be separated from the PTSD." Later in his report, the November 2012 examiner indicated that the Veteran's psychiatric symptoms included anxiety, depressed mood, suspiciousness, panic attacks, chronic sleep impairment, flattened affect, disturbances of motivation of mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, mild memory loss, and impaired impulse control. Immediately after the notation of symptoms, the examiner checked a box on the examination form indicating, in effect, that all of the Veteran's symptoms were attributable to service-related psychiatric disorders. Following review of the evidence, and the applicable laws and regulations, the Board finds that the evidence supports the Veteran's claim for service connection for an acquired psychiatric disorder other than PTSD; most recently diagnosed as depressive disorder, NOS. Although, as noted above, the Veteran's non-PTSD psychiatric disorder(s) has (have) been variously diagnosed, and the November 2012 VA examiner arrived at a diagnosis yet again different from those contained in prior reports, the essence of the November 2012 VA examiner's opinion is that any of the Veteran's psychiatric symptoms that are not directly attributable to PTSD are nevertheless attributable to disability which is "secondary to and cannot be separated from" his PTSD. The examiner's conclusions in that regard are uncontroverted. Accordingly, it is the Board's conclusion that the Veteran's claim should be granted on a secondary basis. The evidence, at minimum, gives rise to a reasonable doubt on the question. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Because the Board is granting this claim, there is no need to engage in any analysis with respect to whether the requirements of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)), have been satisfied with respect to the question of service connection. That matter is moot. ORDER Service connection for an acquired psychiatric disorder other than PTSD, most recently diagnosed as depressive disorder, NOS, is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs