Citation Nr: 1342152 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 04-12 159A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from August 1970 to November 1971. This matter is before the Board of Veterans' Appeals (Board) following Board Remands in April 2006, April 2011, June 2012, and July 2013. This matter was originally on appeal from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Winston-Salem, North Carolina. In December 2005, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. By decision of July 2013, the Board denied service connection for PTSD. The issue on the title page was remanded at that time. Development has been completed and the issue has been returned to the Board. In entering this decision, the Board has reviewed the contents of the Veteran's electronic record in Virtual VA. There are medical records contained therein, and the representative's appellate brief is also located therein. Any further claims should include consideration of the material in the electronic file. FINDINGS OF FACT 1. The Veteran's in-service psychiatric symptoms were due to a personality disorder noted to have existed prior to service. Personality disorders are not diseases or injuries subject to service connection within the constraints of the law. 2. There is no evidence of additional disability resulting from a disease or injury superimposed upon the Veteran's preexisting personality disorder. 3. Bipolar disorder was not present during service or caused by any disease or injury that occurred during service. A psychosis was first shown years post-service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated during military service and a psychosis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matter Pursuant to the Board's April 2006, April 2011, June 2012, and July 2013, Remands, the Appeals Management Center (AMC) obtained the Veteran's personnel file, requested the Veteran's outstanding VA treatment records, scheduled VA examinations to determine the nature and etiology of any psychiatric diagnoses and later referred the claims file to a psychiatric professional to determine whether a psychiatric disorder preexisted service, readjudicated the Veteran's claim under provision of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) as discussed in more detail below, and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's April 2006, April 2011, June 2012, and July 2013 remands. Stegall v. West, 11 Vet. App. 268 (1998). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April 2003 and May 2006 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in September 2013. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Service Connection Service connection means that the facts establish 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 during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran's personnel records show that he was discharged by reason of unsuitability due to immature personality. Administrative Remarks dated in September 1971 state, Assigned mark of 2.0 in military behavior, 2.8 in military appearance, and 2.8 in adaptability due to his extreme immaturity. [The Veteran] is unable to adapt to military life. He is respectful to seniors but his actions otherwise are erratic and unpredictable. [The Veteran's] appearance is normally dirty and unkempt. He takes little pride in the proper wearing of a military uniform. With his present attitude and unstable performance, [the Veteran] is of little value to the Navy. The Veteran's service treatment records indicate that in May 1971, he was hospitalized for a suicidal gesture. At that time, the Veteran stated that he had never had a home life and that his parents and relatives did not care about him. The provider noted that the Veteran was also having trouble on the ship with his fellow workers in that they "kid" him and "ride" him. The Veteran stated that he liked to get away from people and be by himself and that he seemed to be trying to get attention from his superiors at all times by doing various things. The Veteran was referred for psychiatric evaluation at which time he stated that his father had a hot temper and seemed to disapprove of him and not care what happened to him and never seemed to be pleased by his efforts, seeming to prefer his younger brother. The Veteran stated that his mother was somewhat better but still he felt that he was rejected by his family. The Veteran reported that although having a few friends in high school, a good portion of his peers seemed to taunt and tease him trying to elicit some kind of response from him. The Veteran stated that on one occasion after what sounded like a good deal of provocation, he finally did turn around and strike one of his peers hard enough that he had to be hospitalized briefly. At that time, the Veteran was sent for psychiatric consultation on a one-time basis only. The Veteran dropped out of high school in the tenth grade stating that his main problem was in getting along with his peers. The Veteran stated that he was considering suicide at that point but joined the Navy to get away from the teasing and his father's anger and disapproval. The Veteran stated that he was not especially unhappy with the Navy but was unhappy with the way that he seemed to be, as before, the butt of kidding and derision. The provider noted that it was unclear from the Veteran's description how serious the kidding was and it was speculated that he might be over-reacting. After mental status examination, the Veteran was diagnosed as having immature personality. It was not felt at that time that the Veteran was a serious suicide risk; but it was felt that an impulsive suicide gesture in the future was not out of the question. It was recommended that the Veteran be put in a program of therapy at that installation as his ship was not due to deploy until sometime in August. In August 1971, he was referred for psychiatric evaluation by the base legal officer. The provider indicated that the Veteran had been previously seen by that clinic in May 1971 at which time he was diagnosed as having an Immature Personality, that he was having problems with peer and authority relationships aboard ship, and that he was seen on two or three occasions on a counseling basis with some alleviation of his problem. The provider noted that he had again began to engender interpersonal problems with authorities as well as his shipmates culminating in a Captain's Mast in June 1971 for a period of unauthorized leave followed by a Special Court-Martial for another period of unauthorized leave. The Veteran reported that he had enormous difficulty getting along with his peers as well as authorities and perceived himself as intensely disliked aboard ship for reasons which escaped him. The Veteran perceived himself as constantly harassed and persecuted by his shipmates because of his propensity for acute outbursts of temper. The Veteran reported that because of his agitation and dislike for the Navy and for his relationships within the Navy, he made a mild suicide gesture approximately one week before by inflicting superficial lacerations to his own left wrist but denied any acute suicidal intent at that time. The provider noted that the Veteran chronically had difficulties with peers and with control of his temper. He did poorly in high school and dropped out of school in the tenth grade because of his problems with peers. After mental status examination, the diagnosis of severe immature personality was reaffirmed. The provider stated, It is quite evident that [the Veteran] has had considerable access to the normal avenues of counseling within the Navy; and although having some transient ameliorative effects, it becomes apparent that these effects are only transient and that his problems are chronic and most probably resistive and refractory to change within the context of the Navy. Given this man's recent malperformance despite having had access to counseling as well as his blatant lack of motivation at this time to continue his enlistment resulting in his recent malperformance, it is the recommendation of this psychiatrist that his command consider [the Veteran] for separation from the Navy by reason of unsuitability based on a duly diagnosed character disorder... The Veteran was admitted to the hospital in October 1971 after he had gone on unauthorized absence from his ship and missed his ship's movement. The provider noted that the Veteran went to Manila and made a "suicidal attempt" with supposedly 20 Seconals but woke up and went to the American Embassy who referred him back to Subic Bay. At the time of admission, he made it clear that he wanted to get out of the Navy and claimed that he had been recommended for discharge by a psychiatrist but that at the time of admission he was somewhat disoriented secondary to barbiturate. After mental status examination, the Veteran was diagnosed as having acute brain syndrome secondary to barbiturates and immature personality. It was recommended that he be processed for administrative separation as unsuitable for military service because of immature personality. As evidenced above, there is no diagnosis of a psychiatric disorder other than a personality disorder during the Veteran's active duty service. The law provides that personality disorders, mental deficiency, mental retardation and other such "defects" are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Thus, service connection cannot be established for such defects. However, evidence of additional disability resulting from a mental disorder that is superimposed upon a congenital defect such as a personality disorder or mental deficiency during service may be service-connected. 38 C.F.R. §§ 3.303(c) 4.9, 4.127; see also VAOPGCPREC 82-90, 55 Fed Reg. 45,711 (July 18, 1990). In addition, although the record includes post-service diagnoses of schizophrenia and bipolar disorder, there is no evidence of psychosis with the year following the Veteran's discharge from service. A November 1978 letter from a private physician notes that the Veteran carried the diagnoses of schizophrenia, bipolar disorder, and borderline personality and that due to the Veteran's relatively chronic history going back to 1974, it was felt that he was in need of continued therapy and should be considered disabled. Thus, the earliest history of psychosis was noted in 1974, three years after the Veteran's discharge from service. Further, the weight of the evidence is against a finding that a current psychiatric diagnosis had its onset in service or was otherwise related to any incident of service. To the extent that the Veteran's treating physicians note the onset of psychiatric symptoms while in the military, as noted below, the "psychiatric symptoms" noted in service were from a personality disorder. The Veteran underwent VA examination in May 2011. In a June 2011 addendum opinion, the VA examiner noted that the Veteran's current diagnosis, based on a review of all the records and based on his clinical presentation during the examination, was bipolar disorder. The VA examiner stated in January 2013: Due to conflicting information in the veteran's records, it is not entirely clear if the veteran entered service with a psychiatric disorder. However, after considering all available information, it is the opinion of the undersigned examiner that the veteran entered service with a personality disorder, which is a specific type of psychiatric disorder. On his enlistment paperwork, dated 8/14/70, the veteran answered "NO" to the following two questions: "Have you ever been under the care of a psychiatrist or psychologist?" and "Have you ever been a patient (whether or not formally committed) in an institution primarily devoted to the treatment of mental, nervous, emotional, psychological, or personality disorders?" His negative response would indicate no history of mental health treatment or psychiatric disorder or treatment prior to service. However, when the veteran was seen by military medical providers in May 1971 following a suicide gesture, he reported to them that he had been "seen by a psychiatrist since grade school" and had been sent for psychiatric consultation and brief hospitalization during high school after having struck one of his peers. This indicates that it is quite possible he entered military service with a psychiatric disorder that he had failed to disclose upon enlistment such that his enlistment paperwork was completed in a fraudulent manner. Additionally, during his military service (May 1971), the veteran was diagnosed with a personality disorder (Immature Personality) which appears to reason for his military discharge. By definition, personality disorders consist of stable, enduring, chronic patterns of inflexible and maladaptive personality traits that onset of which can be traced back at least to adolescence or early adulthood. Given the diagnostic features, clinical course, and definition of personality disorders, it is believed that traits of the veteran's personality disorder diagnosis existed in the veteran prior to his military service. By definition, such traits would not have spontaneously developed between his enlistment in August 1970 and the initial diagnosis provided by the military medical providers in May 1971. There is no evidence in available medical records that the veteran's personality disorder increased in severity during his military service. Available records (see consultation dated 8/23/71) indicate he was sent for counseling (two or three sessions) which, according to the report, temporarily alleviated some of his interpersonal problems but he eventually became engendered in additional interpersonal difficulties. Such a clinical course is entirely consistent and expected within the normal progression of a personality disorder and, in fact, is one of the defining features of personality disorders. In an August 2013 opinion, the VA examiner who conducted the May 2011 VA examination opined that it was less likely as not that the Veteran's immature personality disorder was the early onset of the later diagnosed bipolar disorder. In addition, the examiner also opined stated that there was no superimposed acquired psychiatric pathology demonstrated during service that resulted in additional disability. The examiner stated that based on all information available, there was no known relationship between the Veteran's in-service symptoms (i.e., symptoms associated with personality disorder) and the later onset of the Veteran's bipolar disorder. The examiner noted that immature personality disorder and bipolar disorder were entirely separate and distinct psychiatric disorders that fall within two separate and distinct diagnostic categories, personality disorders and mood disorders. The examiner noted that personality disorders and mood disorders were coded on separate axes with the DSM-IV-TR multi-axial system for psychiatric diagnosis and that by definition and as demonstrated through classification means, neither of the disorders were the "early onset" of the other. The VA examiner also stated that service treatment records were entirely absent any indication of "superimposed acquired psychiatry pathology," and that the only psychiatric pathology that was documented during military service was that associated with immature personality disorder. As such, there is no competent evidence of record documenting that the Veteran has a current acquired psychiatric disorder which was incurred or aggravated in service and no evidence of an injury or disease of superimposed upon the preexisting personality disorder. No health care professional is on record as making such an assertion, and the Veteran is not competent to provide evidence regarding whether a preexisting personality disorder superimposed upon it during active duty. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Given that the evidence does not establish manifestations of the Veteran's current psychiatric disability in service, the presence of psychosis within a year of discharge from service, or a relationship between current psychiatric disability and service, the Board concludes that the preponderance of the evidence is against the claim for service connection for PTSD, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Entitlement to service connection for an acquired psychiatric disorder other than PTSD is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs