Citation Nr: 1329465 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 10-20 323 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant (the Veteran) is represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from August 1963 to September 1965. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the RO in Milwaukee, Wisconsin. In November 2012, the Board remanded this issue for additional evidentiary development. It has since been returned to the Board for further appellate action. At that time, the Board also denied entitlement to service connection for PTSD. The Board's decision with respect to that issue is final. See 38 C.F.R. § 20.1100 (2012). In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran does not have a psychosis; current psychiatric diagnoses such as depressive disorder, mood disorder, anxiety disorder, and adjustment disorder are not listed among the diseases for which the presumption of service connection for certain chronic diseases, and the provisions regarding chronicity in service and continuity of symptomatology after service must be considered. 2. No current acquired psychiatric disability is related to service or to a service-connected disability; no current acquired psychiatric disability was superimposed on a personality disorder as a result of service. CONCLUSION OF LAW An acquired psychiatric disability other than PTSD was not incurred in service and is not proximately due to or a result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 4.127 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Veterans Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Certain specific conditions are considered chronic diseases under VA Law. These include psychoses, but do not include any other psychiatric diagnoses. 38 C.F.R. § 3.309(a). As the Veteran has not been diagnosed with a psychosis, the provisions regarding the presumption of service connection for certain chronic diseases, and the provisions regarding chronicity in service and continuity of symptomatology after service are not applicable. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that an acquired psychiatric disability other than PTSD is not related to service. The Veteran's service treatment records show that he was admitted for treatment of a dissociative reaction in August 1965. He was observed sitting with a blank stare for 90 minutes. He did not respond to orders or conversation. His in-patient discharge record indicates that he had become uncooperative, refused to take orders, and sat on a deck refusing to speak. During the hospitalization, he went AWOL but returned voluntarily. The Chief of Medicine found that he had a basic personality problem and was not fit for retention in service. The diagnosis was adult situational reaction. Subsequently, he was diagnosed with dissociative reaction and emotionally unstable personality, passive aggressive type. A report of medical examination dated September 8, 1965 shows an abnormal psychiatric evaluation. However, an examination report dated September 24, 1965 shows a normal psychiatric evaluation. Thus, to the extent that the Veteran experienced psychiatric symptoms such as a situational or dissociative reaction in service, he was not diagnosed with a chronic disability at any time during service, and the reaction was found to have resolved at the time of separation. After service, there is no record of treatment for an acquired psychiatric disability for more than 30 years. In conjunction with a May 1998 VA service connection claim, the Veteran had a general VA examination in July 1998. The Veteran reported a history of depression in 1979 after losing two sons. The examiner included a diagnosis of depression, but found no gross evidence of depression at the time of the examination. An April 1998 VA Discharge Summary includes diagnoses of heroin and cocaine dependence and a dependent personality. An October 1998 VA Mental Health Treatment Plan note includes diagnoses of opioid dependence, cocaine dependence, and alcohol dependence. A May 2003 VA treatment record includes diagnoses of polysubstance dependence, antisocial personality traits, and depressive disorder, NOS, most probably substance induced. A December 2008 VA outpatient report includes diagnoses of depression NOS and likely personality disorder NOS. A March 2009 Mental Health Physician's note includes a diagnosis of depression. A June 2009 Psychiatrist Note includes diagnoses of depression and acute adjustment disorder with disturbance of emotions and, potentially, conduct. Relevant diagnoses in April 2010 included depression and depressive disorder NOS. The Veteran had a VA examination in February 2009. The examiner diagnosed dysthymia, as well as elements of a mild chronic mood disorder. An April 2011 VA Mental Health Psychiatry Intake note includes diagnoses of depressive disorder NOS and cocaine and heroin and alcohol dependence in possible remission. A July 2011 VA Mental Health Psychiatry Medication Management note includes diagnoses of depressive disorder NOS, personality disorder NOS (cluster B predominant, possible paranoid traits), and cocaine, heroin, and alcohol dependence in reported remission since 2005. The Veteran was hospitalized in May 2012 with suicidal ideation after spending 2 days in jail. He was diagnosed with depressive disorder NOS, personality disorder NOS, an acute adjustment disorder, and depressive and anxiety symptoms evident adjusting to domestic strife, jail time, and forced homelessness. An October 2012 VA Psychiatry Medication Management note includes diagnoses of mood disorder NOS and personality disorder NOS. The Veteran was afforded a VA examination in December 2012. The examiner diagnosed depressive disorder NOS. The examiner opined that the depressive disorder was not related to service. The examiner noted the Veteran's account of onset of symptoms 15 years prior, which had occurred in the context of stressful life events, including his disability claims, health stressors, family strain, and legal problems. The Board finds that the December 2012 VA opinion is persuasive, and is consistent with a record that establishes no diagnosis or treatment for a chronic acquired psychiatric disability during service as well as an extended post- service period without such a diagnosis. While the Veteran noted to the July 1998 examiner that he had experienced depression in 1979 after losing two sons, and while the July 1998 VA examiner listed a diagnosis of depression, he found no evidence of depression at the examination. Moreover, both the examination and the 1979 episode were after service. Also significant is the fact that the Veteran filed a claim for a VA pension in March 1994 on which he was asked to list his disabling conditions; he listed only the amputation and bone disease of his left arm. He did not mention a psychiatric disability or symptoms. This is convincing evidence that the Veteran was not experiencing chronic symptoms of depression at any time proximate to the claim. In addition, the Veteran filed a service connection claim in May 1998, but mentioned only a back disability. This claim prompted the July 1998 VA examination, which includes the first diagnosis of depression. Thus, the Veteran demonstrated as early as 1994 that he understood the procedure for filing a claim for VA benefits, and he followed that procedure where he believed himself entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting of symptoms than a partial reporting. This is particularly true in the context of a pension claim (March 1994), for which all conditions contributing to disability are relevant. Thus, the Veteran's inaction regarding reporting of psychiatric or mental symptoms, when viewed in the context of action regarding reporting of other symptoms, may reasonably be interpreted as indicative of the lack of psychiatric or mental symptomatology at that time. The Board acknowledges that the Veteran was diagnosed with a personalty disorder in the service, and that he currently has a personality disorder. Generally speaking, personality disorders are congenital defects that are not diseases or injuries within the meaning of applicable legislation for VA disability compensation purposes and, therefore, cannot be service connected even on the basis of in-service aggravation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012). Defects are defined as structural or inherent abnormalities or conditions which are more or less stationary in nature. VAOPGCPREC 82-90 (July 18, 1990). Congenital or developmental defects, such as a personality disorders, automatically rebut the presumption of soundness and therefore are considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9; Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that the Secretary's exclusion of personality disorders from 'diseases' or 'injuries' as a congenital or developmental defect, such that the presumption of soundness does not apply, to be a valid exercise of the authority granted to the Secretary). As such, service connection of personality disorders, whether on a direct basis or by aggravation, is prohibited. 61 Fed. Reg. 52,695. However, 38 C.F.R. § 4.127 provides that disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected. In addition, in accordance with 38 C.F.R. § 3.310(a), personality disorders that result from service-connected disabilities may be service connected on a secondary basis. See also VAOPGCPREC 82-90 (July 18, 1990) (noting that congenital and developmental defects can be subject to superimposed disease or injury such that service connection may be granted where the superimposed disease or injury occurs during service); 61 Fed. Reg. 52,695 (explaining that except as provided in § 3.310(a), § 4.127 was added to reinforce the principle that organic personality disorders that develop secondary to head trauma, epilepsy, etc., will be service connected secondary to these conditions). Therefore, while 38 C.F.R. §§ 3.303(c), 4.9, and 4.127 prohibit any grant of service connection for a personality disorder, even if aggravated in service, the Veteran's other diagnosed psychiatric disorders may provide a basis for service connection if the evidence shows these disorders were superimposed upon his diagnosed personality disorder. Here, service records are absent of any instance of superimposed injury or disease. None of the current diagnoses, i.e., depressive disorder, adjustment disorder, mood disorder, and anxiety disorder, were present in service. The dissociative reaction noted in service has not been noted at any time after service and was not present at service separation. Moreover, the December 2012 examiner opined that only depressive disorder NOS was currently diagnosed, and this was not related to service, but had onset in approximately 1998. Thus, the evidence demonstrates that no current psychiatric disability was superimposed upon the Veteran's personality disorder as a result of service. There is also no assertion or evidence of a personality disorder arising from a service-connected disability within the meaning of 38 C.F.R. § 4.127; 61 Fed. Reg. 52,695. Service connection is only in effect for a low back disability and scars. In this case, the Veteran's personality disorder was present in service and, as a congenital defect, is presumed to have predated service. There is no clinical evidence that relates the onset of a personality disorder to any service-connected disability, and the Veteran has made no assertions to this end. There is no medical opinion that purports to relate an acquired psychiatric disability other than PTSD to service or to a service-connected disability. There is also no medical opinion establishing that any acquired psychiatric disability was superimposed on a personality disorder as a result of service. While the Veteran is competent to report his observable symptoms, and although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), distinguishing among various psychiatric diagnoses and personality disorders, and establishing the etiology of such disorders, falls outside the realm of the common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board also notes that the Veteran has not presented specific arguments or assertions regarding the etiology of non-PTSD psychiatric disorders. His contentions have focused on his assertion that he has PTSD that is related to service. That issue is not before the Board, but is the subject of a final Board decision. To summarize the Board's findings, the Veteran does not have a psychosis but has a personality disorder, which is a congenital defect not subject to service connection. The Veteran also has various acquired psychiatric diagnoses, including depressive disorder NOS, anxiety disorder, a mood disorder, and an adjustment disorder, which are not listed among the diseases for which the presumption of service connection for certain chronic diseases and the provisions regarding chronicity in service and continuity of symptomatology after service must be considered. The Board finds that, despite experiencing a dissociative reaction in service, and being diagnosed with a personality disorder, the Veteran was psychiatrically normal at service separation. The Board finds that the Veteran's personality disorder is not proximately due to or a result of any service-connected disability. The Board also finds that no acquired psychiatric disability other than PTSD is related to service, and that no psychiatric disability other than PTSD was superimposed on the Veteran's personality disorder. In light of these findings, the Board concludes that service connection for an acquired psychiatric disability other than PTSD is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of- the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The Veterans Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which 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, including the degree of disability and the effective date of an award. Those five elements include: (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. In this case, the Veteran submitted his claim for service connection in August 2008. He was sent a letter in March 2009 which advised him of the information and evidence necessary to substantiate his claim. That letter also advised him as to how disability ratings and effective dates were assigned in the event of a successful claim seeking service connection. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Since the March 2009 letter was sent to the Veteran prior to the initial adjudication of the claim in May 2009, there exists no error in the timing of this notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In short, VA has complied with its duty to notify the Veteran in this case. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service treatment records, records from the Social Security Administration, and the Veteran's written assertions. In addition, the Veteran was afforded VA examinations in February 2009 and December 2012. These examinations were adequate because each was performed by a medical professional based on a review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The December 2012 examination included an opinion addressing the etiology any psychiatric disabilities other than PTSD and included a rationale that was consistent with the record. Nieves- Rodriguez v. Peake, 22 Vet. App 295 (2008). The Board finds that a medical opinion specifically addressing whether an acquired psychiatric disability other than PTSD was superimposed on a personality disorder or is secondary to a service-connected disability is not necessary as none of the current acquired psychiatric disorders were present in service or for many years after service, and as there is no assertion on the Veteran's part, or other evidence suggesting that a personality disorder was caused by any service-connected disability. The Board also finds that an opinion regarding aggravation of a personality disorder by service is not necessary as, with the exception of personality disorders arising from service-connected disabilities, service connection of personality disorders, whether on a direct basis or by aggravation, is prohibited under VA law. As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's November 2012 remand instructions by obtaining outstanding VA treatment records and by scheduling the Veteran for a VA examination to determine the nature and etiology of any current acquired psychiatric disorder other than PTSD. The examiner provided a current psychiatric diagnosis and offered an opinion as to whether such disorder was related to the service. The opinion was accompanied by a rationale. ORDER Service connection for an acquired psychiatric disability other than PTSD is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs