Citation Nr: 1337108 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-30 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1973 to July 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by which the RO, in pertinent part, declined to reopen the finally decided claim of entitlement to service connection for an acquired psychiatric disorder. In a prior December 2012 decision, the Board reopened the claim for service connection for an acquired psychiatric disorder, to include depression as new and material evidence had been received. The December 2012 Board decision also recharacterized the issue as noted above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The issue on appeal was also remanded by the Board in December 2012 for further evidentiary development of requesting outstanding post-service VA treatment records and to obtain a VA psychiatric examination for the acquired psychiatric disorder(s). This was accomplished, and the claim was readjudicated in a February 2013 supplemental statement of the case. For this reason, the Board concludes that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran was treated for a personality disorder (dependent personality disorder) during service, but did not sustain a superimposed injury on a personality disorder. 2. The weight of the evidence demonstrates that the Veteran has a currently diagnosed borderline personality disorder. 3. A personality disorder is not a disability for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include depression, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.9, 4.127 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The notice requirements of 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, the VA will attempt to obtain. The United States Court of Appeals for Veterans Claims (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 a timely letter dated December 2007, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice included provisions for disability ratings and for the effective date of the claim. VA medical examinations were provided in January 2002, August 2002, January 2004, and January 2013. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For the reasons discussed in more detail below, the Board finds that the January 2002, January 2004, and January 2013 VA examinations are not probative as the diagnoses were based upon inaccurate factual histories. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). That notwithstanding, the Board finds the January 2013 VA medical opinion to be adequate as it considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete and detailed rationale for the opinion stated. The Board is also satisfied 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 service treatment records, service personnel records, VA examination reports, post-service VA and private treatment records, a December 2005 hearing transcript, and the Veteran's statements. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations 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). Service connection may be granted for any 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). The psychiatric conditions of borderline personality disorder and depression are not "chronic disease[s]" of psychosis listed under 38 C.F.R. § 3.309(a) (2013); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Personality disorders are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c); 4.9 (2013). However, disability resulting from a mental disorder that is superimposed upon and aggravates a congenital defect such as a personality disorder may be service-connected. 38 C.F.R. § 4.127 (2013); see also VAOPGCPREC 82-90, 55 Fed Reg. 45,711; Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). The Board notes that 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 disorder automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). 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) ; 38 C.F.R. § 3.102. Service Connection for an Acquired Psychiatric Disorder During a December 2005 video teleconference hearing before a Veterans Law Judge, the Veteran testified that she had been depressed since 1975. In a September 2009 written statement, the Veteran supplied, for the first time, explicit information regarding persistent symptomatology of psychiatric symptoms during service and since service separation. She described somatic symptoms such as stomach trouble, weight fluctuations, and disturbed sleep and suggested that these had been present since service and that she didn't know until recently that such manifestations were signs of depression. Upon review of the evidence of record, both lay and medical, the Board finds that service connection for an acquired psychiatric disorder is not warranted as the Veteran has a personality disorder, manifested by symptoms of depression and anxiety, and not a diagnosed psychiatric disability as required for VA compensation purposes. See 38 C.F.R. §§ 3.303(c) (personality disorders are not diseases or injuries within the meaning of applicable legislation). Weighing against a finding of a currently diagnosed psychiatric disorder are service treatment records which reflect that the Veteran was treated for a passive dependent personality situational reaction (personality disorder) during service, but was not treated for a superimposed injury on the personality disorder. Service treatment records reflect that in May 1975 the Veteran complained of generalized abdominal pain. At that time, she reported that she had been feeling very nervous about various personal problems, and felt tired constantly. The impression noted was depression. She was prescribed an antidepressant and instructed to return to the clinic if there was no change. Two months later, in July 1975, the Veteran was taken by ambulance to the hospital after she attempted to overdose on several medications, including the antidepressant which had been prescribed to her. The associated treatment records show that she had a history of considerable anxiety precipitated by the death of a friend the previous year and current marital stress. The clinical record indicated that there was no clinical depression, and no impairment of logical progression of thought. The diagnosis was passive dependent personality situational reaction. The Veteran was subsequently hospitalized for approximately one week and a half, during which time treatment records indicated that the Veteran appeared to be in good spirits, with no outward signs of depression. The night prior to her discharge from the hospital, the Veteran stated that she "did not feel bad at all." There was no further treatment related to psychological problems in service treatment records. On examination in June 1976, prior to her discharge from service, the Veteran's psychiatric evaluation was normal. The Board finds that this evidence demonstrates that the Veteran was evaluated during service and was found to have a personality disorder, and does not demonstrate a diagnosis for clinical depression. Further, the June 1976 service separation examination report made no mention of a psychiatric disorder. The Board finds that this evidence weighs against a finding that the Veteran had a diagnosed acquired psychiatric disorder, to include depression, in service. In August 2001, the Veteran was awarded disability benefits from the Social Security Administration (SSA) based upon a psychiatric impairment. In July 2001, she was afforded a psychiatric evaluation with a private physician in conjunction with that claim. On examination, she reported a two-year history of feeling useless. She mentioned that there was a previous episode of depression at approximately age 18, that lasted for about one year. She reported a history of abusive relationships that still caused her some concern. Mental status examination resulted in a diagnosis of major depression, with considerable associated anxiety. The Board finds that the SSA decision and the record before SSA do not include any mention of the Veteran's military service, and it does not appear that the examiner reviewed the claims file, to include service treatment records which reflect that the Veteran was treated for a personality disorder during service. Accordingly, the Board finds the SSA psychiatric evaluation to be of no probative value. Although SSA determinations may be relevant in VA disability determinations, they are not binding on VA. See, e.g., Faust v. West, 13 Vet. App. 342, 356 (2000). The Veteran underwent VA psychiatric examinations in January 2002, August 2002, and January 2004. On examination in January 2002, the Veteran reported that prior to military service she had never been treated for emotional problems. She reported that in service she was hospitalized after a suicide attempt due to some "personal emotional problems." With regard to post-service stressors, the Veteran stated that she had a failed marriage, was homesick, had a child, and "it was difficult to adjust to civilian life." Other stressors included health problems, and not being able to work. With regard to her depression, the Veteran reported that it began approximately five years before, when she had a bladder surgery preceded by a hysterectomy. She stated that at that time, she escaped from her feelings by getting involved in work, so that she did not have time to think. Now that she was unable to work, she had time to think about her health and the lack of activity in her life. The diagnosis was depressive disorder, not otherwise specified. The examiner did not opine as to whether the Veteran's depressive disorder was related to service. The Veteran underwent examination for PTSD in August 2002. Following mental status examination, the diagnosis was depressive disorder, not otherwise specified. The examiner opined that her depressive disorder was not secondary to the alleged sexual trauma in service. As the examiner did not provide a rationale for the opinion rendered, the Board finds the August 2002 VA medical opinion to be of no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Miller v. West, 11 Vet. App. 345, 348 (1998) (a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). The Veteran again underwent a VA examination in January 2004. The examiner noted that while in service, the Veteran was hospitalized after an overdose of medications and was diagnosed as having passive dependent personality situational reaction. It was noted that she had no clinical depression or impairment of logical thought. It was found that she was experiencing considerable anxiety precipitated by the death of her friend and marital stress. She was discharged for outpatient follow-up, but received no further psychiatric treatment while in service. Post-service, the Veteran first received psychiatric treatment in October 2000, from the VA Women's Health Center. It was noted that that treatment primarily related to the stresses of her marital situation and her son. The examiner noted that the Veteran at that time attributed her problems to her health and family problems, in addition to not being able to work. Later treatment records show diagnoses of dysthymia and depressive disorder, not otherwise specified. Also during the January 2004 VA examination, the Veteran reported that prior to entering the military she had led a sheltered life. She reported that one night after a date, she was raped by a fellow serviceman. She stated that after the rape she told only one person, who was later killed in a motor vehicle accident. She also reported that while in the military she experienced a great deal of loneliness, and felt homesick. The Veteran reported that after her overdose, and while still hospitalized, she spoke with a therapist who felt her problems were related to her marital relationship, specifically the physical abuse. On mental status examination, the January 2004 VA examiner noted that there was no evidence of a thought disorder, and no delusions, although the Veteran did exhibit some paranoia. Her answers to questions were noted to be consistent, indicating that she did appear to understand the questions. Diagnostic testing, however, was noted to produce invalid profiles. Her scores were noted to generally reflect intentional exaggeration of symptoms for the purpose of secondary gain. The diagnosis was depressive disorder, not otherwise specified. In sum, the January 2004 VA examiner stated that the Veteran was examined for the purpose of ascertaining whether her depressive disorder might be related to her hospitalization while in service due to a drug overdose. The examiner stated that it appeared from a review of the record that her hospitalization was in response to particular stressors which were present at that time, including the death of her friend, loneliness, marital stress, and also possibly the date rape. The examiner noted that the Veteran had continued to have relationships with abusive men throughout her adult life. As a result of these relationships, she has been injured, and has lost her ability to work. The Veteran herself dated her depression back to approximately seven years before, when she had the bladder surgery. Her depression and anxiety had worsened as she has experienced increasing amounts of domestic violence. The VA examiner opined that the depressive disorder, which the Veteran was now experiencing, appeared to be due to family stressors that she had been experiencing for the past several years, including living with her bipolar son, not being able to work, and health problems. Although the problems she was currently experiencing appeared to be similar to the problems that she experienced in service, they did not appear to the examiner to be caused by or necessarily related to those problems in service. The examiner additionally opined that it was likely that the Veteran's passivity has led to some chaos in her life. Her depressive disorder appeared to be secondary to this chaos rather than to experiences in the military. Pursuant to the Board's December 2012 remand, the Veteran was afforded another VA examination in January 2013 to determine the nature and etiology of any acquired psychiatric disorders. In the December 2012 remand, the Board explained that the Veteran asserted that manifestations of an acquired psychiatric disorder such as trouble sleeping and stomach problems existed continuously since service but that she didn't know that these were signs of depression. Specifically, during the December 2005 video teleconference hearing before a Veterans Law Judge, the Veteran testified in essence that she had been depressed since 1975. In essence, the Board found that the Veteran was negating information provided during previous VA examinations wherein she indicated that depressive symptoms began well after service separation. For example, the January 2002 VA psychiatric examination report reflects that the Veteran indicated that her depressive symptoms had their onset five years earlier. On January 2004 VA mental health examination, the Veteran indicated that her current depressive symptoms began approximately seven years earlier. Because the previous VA examiners did not have a full picture of the Veteran's disability history, the Board's December 2012 remand directive requested a new VA examination. As explained in the December 2012 remand, the Board finds that the previous VA opinions dated January 2002, August 2002, and January 2004, lack probative value because the previous VA examiners based their opinions regarding the etiology of the Veteran's acquired psychiatric disorder on an inadequate factual premise. Reonal, 5 Vet. App. at 461 (a medical opinion based upon an inaccurate factual premise is not probative); Swann v. Brown, 5 Vet. App. 229 (1993); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). For these reasons, the Veteran was afforded a VA psychiatric examination in January 2013. The VA examiner reviewed the claims file, interviewed the Veteran, and conducted a mental status examination. The VA examiner then rendered diagnoses of borderline personality disorder and alcohol dependence and opined that the claimed disorders were less likely than not incurred in or otherwise related to service. In support of this opinion, the VA examiner stated the following: "The veteran has multiple psychiatric diagnoses, with vague psychiatric and somatic complaints. All of the psychiatric diagnoses can be subsumed under a diagnosis of borderline personality disorder, the first manifestations of which were alluded to in the military when she was described as having a "passive-dependent personality." She meets criteria for borderline personality disorder, although she has periods of time in which some symptoms are more prominent than others, and during these times, she is diagnosed based on the symptoms prominent at the time. this explains the multiple psychiatric diagnoses with clusters of anxiety and depressive symptoms as well as impulsivity and irrational behavior. In fact, it appears as if all of her psychiatric symptoms and some of her somatic symptoms can be summarized with a diagnosis of borderline personality disorder which is manifest by: 1. frantic efforts to avoid real or imagined abandonment (she will threaten to "go into a nursing home" or will attempt dramatic self-harm such as throwing herself in front of a car when she is criticized by her partner) 2. a pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of idealization and devaluation. (multiple abusive marriages with felons, drug abusers, and alcoholics) 3. identity disturbance: markedly and persistently unstable self-image or sense of self. 4. impulsivity in at least two areas that are potentially self-damaging (alcohol abuse and gambling) 5. recurrent suicidal behavior, gestures, or threats, or self-mutilating behavior 6. affective instability due to a marked reactivity of mood (e.g., intense episodic dysphoria, irritability, or anxiety usually lasting a few hours and only rarely more than a few days). 7. chronic feelings of emptiness In addition, she has somatic symptoms as part of her ongoing and distraught efforts to explain her inner psychic distress, including chronic gastrointestinal distress, chronic pain, dizziness/balance disturbance, and chronic fatigue which in my opinion are attributable to her primary psychiatric diagnosis." The Board finds the January 2013 VA medical opinion to be highly probative on the question of a currently diagnosed psychiatric disorder. The VA examiner interviewed the Veteran, conducted a mental status examination, and reviewed the entire claims file, to include service treatment records, post-service treatment records, and past VA psychiatric medical opinion. For these reasons, the Board finds that the January 2013 VA medical opinion weighs against the Veteran's claim for service connection for an acquired psychiatric disorder. As noted above, personality disorders, which include the diagnosis of dependent personality disorder, are not "diseases" or "injuries" within the meaning of applicable legislation and may not be service connected in the absence of superimposed disease or injury. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also VAOPGCPREC 82-90, 55 Fed Reg. 45,711; Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). In the Veteran's case, service treatment records do not reveal a resultant disability due to disease or injury superimposed upon the personality disorder. The July 1975 mental status examination revealed no clinical depression, and no impairment of logical progression of thought. The June 1976 service separation examination report made no mention of a psychiatric disorder, to include any aggravation of the personality disorder by superimposed disease or injury. Moreover, the January 2013 VA examination diagnosed the Veteran with borderline personality disorder. According to the VA examiner, the Veteran had multiple psychiatric diagnoses, with psychiatric and somatic complaints. All of the diagnoses were noted as being subsumed under a diagnosis of personality disorder, the first manifestations of such alluded to in service and she was described as having "passive-dependent personality." The VA examiner further stated that the Veteran met the criteria for borderline personality disorder, although she had periods of time in which some symptoms were more prominent than others, and during these times, she was diagnosed based on the symptoms prominent at the time. This, according to the VA examiner, explained the multiple psychiatric diagnoses with clusters of anxiety and depression. For these reasons, the Board finds that service connection is not warranted for the Veteran's personality disorder. The Board has also considered the Veteran's lay statements purporting to diagnose her claimed psychiatric disorder and relate such a disorder to service. The Board acknowledges that as a lay person, the Veteran is competent to relate some symptoms that may be associated with her psychiatric disorder, to include feelings of depression and anxiety; however, she does not have the requisite medical knowledge, training, or experience to be able to diagnose medically complex psychiatric disorders, to include borderline personality disorder and depression. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Psychiatric disorders are medically complex disorders which require knowledge of the DSM-IV criteria, usually require mental status examinations to diagnose, and manifest symptomatology that sometimes overlaps with other disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board finds the January 2013 VA medical opinion to be the most competent evidence of record as to the nature of the Veteran's psychiatric disorder. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder, to include depression, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder, to include depression, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs