Citation Nr: 1743496 Decision Date: 09/29/17 Archive Date: 10/10/17 DOCKET NO. 13-33 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a personality disorder. 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, schizophrenia, depressive disorder, cannabis abuse, and cocaine abuse, other than personality disorder. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and Ms. J. W. ATTORNEY FOR THE BOARD J. A. Sebastian, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1979 to February 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In an April 2016 rating decision issued by the RO in North Little Rock, Arkansas, service connection for PTSD was denied. In February 2017, the Veteran and Ms. J. W. testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2013, the Veteran's representative filed a Statement in Support of Claim requesting that the appeal be expedited based on financial hardship. The Board will grant the Veteran's request and advance his appeal pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2). The Board notes that the Veteran was previously denied entitlement to service connection for a personality disorder in an August 1982 rating decision, based, in part, on a May 1982 VA examination which found that the Veteran had an axis II diagnosis of schizotypal personality and noted that the Veteran "appear[ed] to be suffering from personality disorder." To the extent that the Veteran seeks entitlement to service connection for newly diagnosed mental conditions other than personality disorder the Board will consider those issues to encompass a new claim for service connection for an acquired psychiatric disorder other than personality disorder and not be subject to the standards of reopening. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this Veteran's case must take into account the existence of these electronic records. The issue of entitlement to service connection for an acquired psychiatric disorder, other than personality disorder, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. In an August 1982 rating decision the RO denied the Veteran's claim for service connection for personality disorder. The Veteran was notified of the decision and did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the August 1982 rating decision does not relate to an unestablished fact or raise a reasonable possibility of substantiating the claim for service connection for a personality disorder. CONCLUSIONS OF LAW 1. The August 1982 rating decision denying service connection for personality disorder, psychosis, and neurosis is final. 38 U.S.C.A. § 7105 (c) (West 2014); 38 C.F.R. § 20.1103 (2016). 2. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for a personality disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. §§ 3.156 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Once a decision becomes final, absent submission of new and material evidence, a claim may not thereafter be reopened or readjudicated by VA. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156 (a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). As noted above, the RO denied service connection for a personality disorder in August 1982. The Veteran was provided notice of this decision and his appellate rights, but he did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a). Moreover, if it is determined that new and material evidence has been submitted, the claim must be reopened and considered on the merits. See generally Elkins v. West, 12 Vet. App. 209 (1999). In determining whether evidence is new and material, the credibility of the new evidence is, preliminarily, to be presumed. If the additional evidence presents a reasonable possibility that the claim could be allowed, the claim is accordingly reopened and the ultimate credibility or weight that is accorded such evidence is ascertained as a question of fact. 38 C.F.R. § 3.156; Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In August 1982, the RO denied service connection for a personality disorder. At the time of the August 1982 rating decision, the following evidence was of record: service treatment records, which included a February 1982 Competence for Duty Examination, with a diagnosis of cluster headaches; and, a May 1982 VA examination report with a diagnosis of schizotypal personality and headaches. Since the denial of the Veteran's claim, the Board finds that new and material evidence has not been submitted sufficient to reopen a claim of entitlement to service connection for a personality disorder. Generally, personality disorders, mental deficiency, mental retardation and other such "defects" are not "diseases" or "injuries" within the meaning of applicable legislation for VA disability compensation purposes and, therefore, cannot be service connected. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127. The Board finds that while "new" evidence has been submitted since the last prior final denial of the Veteran's claim in August 1982, the evidence is not material to the basis of the denial of the Veteran's claim of entitlement to service connection for a personality disorder. See 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. at 117. Accordingly, the Board finds that reopening is not warranted with respect to the Veteran's claim of entitlement to service connection for a personality disorder and, to this extent only, the appeal is denied. ORDER New and material evidence having not been submitted, the claim to reopen a claim for service connection for a personality disorder is denied. REMAND The Veteran contends that he has an acquired psychiatric disorder that is associated with his military service. The record before the Board includes records that show treatment for various mental health conditions. Moreover, the Veteran presented various lay statements regarding his mental health problems, including during his February 2017 Board hearing. To date, the Veteran's last VA examination was May 1982. A new examination is warranted to determine the nature and etiology of any mental health issues. An examination or medical opinion is warranted when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service or a service-connected disability; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the record before the Board, the Board finds that, on remand, the Veteran should be provided a VA examination in connection with his claim. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his psychiatric disorder(s). After obtaining this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA treatment records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination with an appropriate psychologist or psychiatrist to determine the nature and etiology of any current acquired psychiatric disorder that may be present. The examiner must elicit from the Veteran a history of his psychiatric symptoms, to include whether he experienced any symptoms during service. The examiner must review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements, and it should be confirmed that such records were available for review. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. If any previously diagnosed psychiatric disorder is not found on examination, the examiner should address the prior diagnoses of record. For each diagnosis identified, other than PTSD, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran's military service, including any symptomatology or circumstances reflected therein. With respect to PTSD, the AOJ must provide the examiner with a summary of any verified in-service stressors and instruct the examiner that only these events and any stressors related to fear of hostile military or terrorist activity may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should first determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner must comment on the link between the current symptomatology and any verified in-service stressor and the fear of hostile military or terrorist activity. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or, in the alternative, the entire claims file, must be made available to the examiner for review. 3. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). (CONTINUED ON NEXT PAGE) 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 2014). _________________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).