Citation Nr: 1324645	
Decision Date: 08/02/13    Archive Date: 08/13/13

DOCKET NO.  12-01 946	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD) and recurrent depressive disorder.

2.  Entitlement to service connection for passive aggressive personality disorder.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

F. Yankey, Counsel


INTRODUCTION

The Veteran served on active duty from October 1973 to August 1975.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut, which in pertinent part denied service connection for PTSD, recurrent depressive disorder and passive aggressive personality disorder.

The Veteran testified before the undersigned at a June 2013 Video Conference hearing.  The hearing transcript is of record.  The Board notes that approximately one week after the June 2013 hearing, the Veteran submitted additional medical evidence (treatment records from the VA Medical Center in West Haven, Connecticut dated in April 2013), which has not yet been considered by the RO.  However, as the issue that the records relate to is being remanded, the RO will have an opportunity to review the evidence before a final decision is rendered. 

The Board observes that the Veteran's claim for service connection for PTSD and his claim for service connection for recurrent depressive disorder were developed and adjudicated separately, but have now arrived at the Board simultaneously.  The United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD may encompass claims for service connection for all diagnosed psychiatric disabilities  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  Accordingly, the Board has combined the two claims for service connection for psychiatric disabilities in a single issue in order to comply with the Court's holding.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).
The issue of entitlement to an acquired psychiatric disorder, to include PTSD and recurrent depressive disorder 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 a congenital or developmental defect, which is not a disease or injury for the purposes of service connection.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303(c) (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

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).

Analysis

The Veteran has claimed entitlement to service connection for a personality disorder that he essentially contends originated in service, as a result of injuries to the head he sustained during an assault in the Philippines in 1974.  

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

Service connection for passive aggressive 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 the aforementioned assault he endured during active duty in the Philippines in 1974.

Service treatment records do show that the Veteran was hospitalized and treated for status post, cerebral contusion, secondary to an alleged assault in the Philippines; status post lacerations of the scalp; status post otitis media with perforation of the right tympanic membrane; and passive aggressive personality disorder.  Furthermore, he has been service-connected since 1977 for scars on the scalp and face, as residuals of a head injury, and traumatic neuropathy, lesser occipital nerve, as residuals of a head injury.  See September 1977 rating decision.

The Veteran underwent a VA PTSD examination in September 2010.  He again reported being assaulted during active duty in the Philippines in 1974 or 1975, and being subsequently treated for head injuries, secondary to the assault.  The examiner concluded that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD, but he did diagnose an adjustment disorder with depressed mood and personality disorder, not otherwise specified.  The examiner did not offer an opinion as to the etiology of the diagnosed adjustment disorder with depressed mood.  See September 2010 VA examination report.

The medical evidence of record contains competent evidence of a current psychiatric disability.  The Veteran's reports of in-service psychiatric symptoms and a continuity of symptomatology provide evidence that a current psychiatric disability may be related to service.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  However, contemporaneous evidence of an ongoing psychiatric disability in the years following service is not of record.  Furthermore, there is no opinion of record addressing whether the Veteran's diagnosed adjustment disorder with depressed mood is related to his active military service.  

Therefore, the Board believes that the Veteran should be afforded another VA psychiatric examination to determine the nature and etiology of all currently present acquired psychiatric disorders.  38 U.S.C.A. § 5103A (d) (West 2002).

The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158 and 3.655 (2012). 
The Board further notes that during his June 2013 Video hearing, the Veteran testified that he was treated for psychiatric symptoms almost immediately following his discharge, specifically from October 1975 to July 1977, at the VA Medical Center in Springfield, Massachusetts.  The record reflects that there is one record of treatment at the VA Medical Center in Springfield in September 1975 for what appeared to be psychiatric symptoms, but nothing more.  There are also treatment records from the VA Medical Centers in Salt Lake City, but these are only dated from April 2002 to April 2003, as well as records from the VA Medical Center in West Haven, Connecticut, which are only dated from January 2010 to June 2010.  The record reflects that the Veteran has attempted to obtain the records of treatment from October 1975 to July 1977 himself, but to no avail.  The Veteran also testified that he received treatment at the VA mental health clinic in West Haven, Connecticut once a week.  As noted above, there are treatment records from the VA in West Haven dated up to June 2010.  The Veteran also recently submitted treatment records from the VA in West Haven dated in April 2013, but there are no records after this date.

The procurement of potentially pertinent medical records referenced by the Veteran is required.  As it appears that there may be available VA medical records that are not presently associated with the claims folder, a remand is required.  See 38 C.F.R. § 3.159(c)(2).  The provisions of 38 C.F.R. § 3.159(c) provide that VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency.  If VA is unable to obtain such records, VA must provide the claimant with oral or written notice of that fact.  The notice must contain various information, including an explanation of the efforts VA made to obtain the records and a description of any further action VA will take regarding the claim.  38 C.F.R. § 3.159(e).  As this case is already being remanded for further development, the RO should take this opportunity to obtain any additional treatment records that may be relevant to the claim.  


Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his psychiatric disorders.  After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. 

The RO should also obtain any outstanding VA outpatient treatment records, including records of treatment at the VA Medical Centers in Springfield, Massachusetts, West Haven, Connecticut and Salt Lake City, Utah, dated from October 1975 to the present. 

2.  Afford the Veteran a VA examination to determine the etiology of all currently diagnosed psychiatric disorders.  The examiner should review the claims folder and note such review in the examination report or an addendum. 

The examiner should provide an opinion as to whether it is as likely as not (50 percent probability or more) that any current psychiatric disorder originated while the Veteran was serving on active duty or is otherwise etiologically related to service.  


A complete rationale should be given for all opinions and conclusions expressed. 

The examiner is advised that the Veteran is competent to report injuries as well as symptoms, and that his reports must be considered in formulating the requested opinions.  If his reports are discounted, the examiner should provide a reason for doing so. 

The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion.

If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

3.  Thereafter, the RO or the AMC should re-adjudicate the Veteran's claim for service connection based on the new evidence of record.  If the benefit sought on appeal is not granted, the agency of original jurisdiction should issue a supplemental statement of the case.  The case should be returned to the Board, if otherwise in order.

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).



______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs