Citation Nr: 1751626	
Decision Date: 11/13/17    Archive Date: 11/22/17

DOCKET NO.  14-01 148	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Whether new and material evidence has been received sufficient to reopen a previously denied service-connection claim for a personality disorder.

2. Whether new and material evidence has been received sufficient to reopen a previously denied service-connection claim for a low back disability.

3. Entitlement to service connection for a personality disorder.

4. Entitlement to service connection for a low back disability.

5. Entitlement to service connection for skin lesions due to exposure to ionizing radiation.

6. Entitlement to service connection for an acquired psychiatric disorder, claimed as bipolar disorder with depression.

7. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Kelly A. Gastoukian, Associate Counsel


INTRODUCTION

The Veteran had active service from July 1988 to July 1990.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction now lies with the VA RO in Atlanta, Georgia.

In January 2017, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board Hearing conducted at the RO in Atlanta, Georgia. A transcript of that hearing has been associated with the record.

Additional evidence, including a February 2017 private medical opinion and buddy statements, were submitted into the record after the certification and transfer of the file to the Board. However, the Veteran specifically waived RO review of new evidence in a March 2017 statement. See 38 C.F.R. § 20.1304.

The Board notes that the RO adjudicated service connection for bipolar disorder with depression. In Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) the Federal Circuit clarified how the Board should analyze claims for acquired psychiatric disorders. As emphasized in Clemmons, though a veteran may only seek service connection for bipolar disorder with depression, the veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. Therefore, the Board will address whether service connection is warranted for an acquired psychiatric disorder, however diagnosed as shown in the first issue on the title page of this document.

The issues of entitlement to service connection for a low back disability, service connection for a skin disability, service connection for an acquired psychiatric disorder, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. In an October 1990 rating decision, the RO denied service connection for a personality disorder; the Veteran did not perfect an appeal as to that decision and it became final.

2. In a June 1994 rating decision, the RO denied reopening a claim for a nervous disorder for failure to submit new and material evidence; the Veteran did not perfect an appeal as to that decision and it became final.

3. Evidence associated with the claims file since the June 1994 denial regarding service connection for a personality disorder relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim.

4. The Veteran has a diagnosis of personality disorder by history and Cluster B traits.

5. A personality disorder is not a disease or injury for the purposes of service connection. 

6. In a June 1994 rating decision, the RO denied service connection for a back disability; the Veteran did not perfect an appeal as to that decision and it became final.

7. Evidence associated with the claims file since the June 1994 denial regarding service connection for a back disability relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim.

8. The Veteran has identified VA treatment records that pertain to a continuity of chronicity of a back disability since separation from service. 


CONCLUSIONS OF LAW

1. The June 1994 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).

2. New and material evidence has been received to reopen the claim for service connection for a personality disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

3. The criteria for service connection for a personality disorder have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 4.9, 4.127 (2017).

4. New and material evidence has been received to reopen the claim for service connection for a back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. New and Material Evidence

A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold to reopen a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 

VA is required to review for its newness and materiality only the evidence submitted by the claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. See Evans v. Brown, 9 Vet. App 273 (1996). The prior evidence of record is important in determining newness and materiality for the purposes of deciding whether to reopen a claim. Id. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).




Personality Disorder

The Veteran's original claim of service connection for a personality disorder was denied by the RO in an October 1990 rating decision, and was denied reopening in a June 1994 rating decision. The evidence of record at the time of the June 1994 decision consisted of service treatment records. The RO denied the claim in October 1990, noting that the Veteran's condition was not a disease or injury in the meaning of applicable legislation for disability compensation purposes as well as a lack of evidence for a chronic nervous condition in the service treatment records. The June 1994 rating decision denied reopening because no new and material evidence was submitted.

The Veteran was informed of that decision and of his appellate rights in a letter from the RO later that same month. The Veteran did not file a notice of disagreement with the decision, nor was any new and material evidence received during the remainder of the appeal period. The June 1994 rating decision is therefore final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

In June 2008, the Veteran submitted a request to reopen a claim of service connection for a personality disorder. The RO denied reopening the claim of service connection for a personality disorder because no new and material evidence had been received; however, within a year of that decision the Veteran submitted new and material evidence to include VA treatment records and a lay statement. Therefore, the June 2008 request to reopen a claim of service connection for a personality disorder remained open. 

As previously noted, the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade, 24 Vet. App. at 117. Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. 

Since the June 1994 rating decision, the Veteran has provided VA treatment records, including records that documented current psychiatric issues. This evidence is new because it was not received before, nor considered in the June 1994 rating decision. Additionally, it is material because it contributes to a more complete picture of the chronicity of the Veteran's personality disorder. In particular, since the June 1994 rating decision commented on the lack of a chronic nervous condition, the new medical evidence that shows the Veteran had a chronic psychiatric issue relate to the open medical question as to whether the Veteran had a psychiatric disorder that had its onset in, or is otherwise related to service. The evidence is new, material and serves to reopen the claim. To this extent only, the appeal is granted.

Back Disability

The Veteran's original claim of service connection for a back disability was denied by the RO in a June 1994 rating decision. The evidence of record at the time of the June 1994 decision consisted of service treatment records. The RO denied the claim in June 1994, noting the lack of evidence of a chronic back disability. 

The Veteran was informed of that decision and of his appellate rights in a letter from the RO later that same month. The Veteran did not file a notice of disagreement with the decision, nor was any new and material evidence received during the remainder of the appeal period. The June 1994 rating decision is therefore final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App.242, 251-52 (2010).

In February 2009, the Veteran submitted a request to reopen a claim of service connection for a back disability. In a March 2010 rating decision, the RO denied reopening the claim of service connection for back disability because no new and material evidence had been received. The Veteran filed a notice of disagreement in March 2011. A statement of the case was issued in November 2013. The Veteran perfected an appeal to the Board with a VA Form 9 in December 2013. 

As previously noted, the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade, 24 Vet. App. at 117. Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. 

Since the June 1994 rating decision, the Veteran has provided VA treatment records, testimony, a private opinion, and lay and buddy statements, including records that documented a current chronic back disability and testimony that VA treatment records exist from his time of separation from service to the present that document a chronic back disability. This evidence is new because it was not received before, nor considered in the June 1994 rating decision. Additionally, it is material because it contributes to a more complete picture of the chronicity of the Veteran's back disability. In particular, since the June 1994 rating decision denied the low back disability for failure to show the relation between the low back disability and service, the new medical evidence that indicates the Veteran had issues with his back since service and attributes his back disability to his service relate to the open medical question as to whether the Veteran had a back disability that had its onset in, or is otherwise related to service. The evidence is new, material and serves to reopen the claim. To this extent only, the appeal is granted.

II. Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 

Further, congenital or developmental defects, such as personality disorders, are not considered to be diseases or injuries within the meaning of the applicable legislation and are not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9. See Winn v. Brown, 8 Vet. App. 510, 516 (1996), appeal dismissed, 110 F.3d 56 (Fed. Cir. 1997), and cases cited therein. Service connection is only possible if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245   (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99.

The Veteran's service treatment records show that the Veteran was diagnosed with alcohol abuse, personality disorder (passive aggressive and antisocial features).

The Veteran has diagnoses of personality disorder by history and cluster B traits during the appeal period. See May 2009 and May 2013 VA treatment records.

The Veteran was afforded a VA mental disorders examination in October 2013. An Axis I diagnosis of cocaine-induced psychotic disorder, with delusions and a diagnosis of cocaine dependence, in early remission, was provided. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no evidence in the in-service medical records that showed a diagnosis or treatment for a psychiatric condition other than substance dependence. The examiner further noted that by the Veteran's report and in-service medical records, substance abuse onset prior to service and continued after service, and therefore is less likely than not incurred in service.

As in initial matter, the Board notes that no mental health condition was noted at the time of the Veteran's entry into service. The Veteran, therefore, is presumed to be sound upon entry into service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b).

Next, while a character or personality disorder may be a psychiatric disorder, it is not a disability for which service connection may be granted. See 38 C.F.R. § 3.303(c) ("personality disorders . . . are not diseases or injuries within the meaning of applicable legislation"); 38 C.F.R. §§ 4.9, 4.127 ("personality disorders are not diseases or injuries for compensation purposes"). 

While the Veteran has had a diagnosis of personality disorder, VA compensation may not be paid for a personality disorder, as it is specifically excluded as a disease or injury within the meaning of applicable legislation providing for VA compensation benefits. 

The Board has considered the Veteran's contentions and is aware that he is competent to make lay observations as to changes in mood and motivation, among other mental health symptoms. The determination of whether such symptoms represent either the onset or the aggravation of particular mental health disorder, be it an Axis I disorder contemplated by 38 C.F.R. § 4.130 or a personality disorder, is nevertheless a complex medical question that is the preserve of mental health specialists. The Veteran does not possess the training, credentials, or other expertise to render such a determination. His lay contentions are thus of markedly lower probative value than the medical evidence cited above. See generally Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Therefore, to the extent the evidence of record requires the Board to consider whether service-connection may be warranted for the Veteran's diagnosed condition, the Board must deny that aspect of the Veteran's psychiatric disability claim as a matter of law. As there is no competent and probative evidence of a current psychiatric disability which can be service connectable as a matter of express VA regulation, there is no basis on which the claim for service connection may be granted. It is therefore unnecessary to address any other element of direct or secondary service connection. Accordingly, the claim for service connection is denied.


ORDER

The application to reopen the claim of entitlement to service connection for a personality disorder is granted.

The application to reopen the claim of entitlement to service connection for a back disability is granted.

Service connection for a personality disorder is denied.


REMAND

With respect to the Veteran's reopened service-connection claim, the Veteran stated in his January 2017 Board hearing that he had received ongoing treatment for his back at the Atlanta VAMC and the Durham VAMC since separation from service in 1990. As the VA treatment records, if procured, could bear on the outcome of his claims, efforts must be made to obtain them. See 38 U.S.C. § 5103A; Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive possession of medical evidence in its possession).

The Veteran asserts that his diagnosed skin disability is due to his exposure to ionizing radiation in service. Although the claimed disability is not a radiogenic diseases under 38 C.F.R. § 3.311(b) or listed as diseases specific to radiation exposed veterans under 38 C.F.R. § 3.309(d), the United States Court of Appeals for the Federal Circuit has held that a veteran is not precluded from "proving actual direct causation if [he] is able to do so." Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). In this regard, an issue to be addressed in this claim is whether the Veteran was, as he alleges, exposed to ionizing radiation in service.

The Veteran's DD 214 shows he served as functional support and administration on the U.S.S. Virginia. In testimony at the January 2017 hearing before the Board, he stated that sometime in 1989, while serving on a guided missile cruiser (U.S.S. Virginia) in Guantanamo Bay, Cuba, they performed sea trials and discharged missiles while they simulated an attack. He stated that to his knowledge some of the missiles were nuclear and during this simulation he was exposed to ionizing radiation. 

The Veteran was afforded a VA skin diseases examination in October 2013. The examiner indicated a diagnosis of prurigo nodularis and opined that the Veteran's skin disability was less likely than not incurred in or caused by military service. The examiner reasoned that the service treatment records did not show treatment for the condition.

The Board finds that the VA examiner's rationale is inadequate as it failed to provide a thorough rationale for his conclusion. The rationale does not address the Veteran's lay statements that the red bumps onset in May 1990, while still in service, and that the same lesions are what led to his current diagnosis. Further, the examiner did not provide an opinion or rationale of whether the skin disability was related to ionizing radiation exposure. As such, a remand is necessary to obtain an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Although the Veteran has attributed his claimed skin disability to exposure to radiation, it is unclear whether he suffers from a disability that may be attributed to exposure to radiation, or whether he has indeed suffered such exposure. Before development is conducted to determine the claimed exposure, the VA addendum opinion should be conducted to specifically determine whether service connection may be awarded for the Veteran's skin disability diagnosed during the appeal period based on such exposure.

With respect to the Veteran's claim for service connection of an acquired psychiatric disorder, the Board notes that the Veteran was discharged from service due to his severe personality disorder.

The Veteran was afforded a mental disorders examination in October 2013. The examiner diagnosed cocaine-induced psychotic disorder, with delusions and cocaine dependence, in early remission. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no evidence in the in-service medical records that showed a diagnosis or treatment for a psychiatric condition other than substance dependence. The examiner further noted that by the Veteran's report and in-service medical records, substance abuse onset prior to service and continued after service, and therefore is less likely than not incurred in service. Finally, the examiner noted that the Veteran did not meet the DSM IV criteria for bipolar disorder or depression.

The Board notes that the Veteran has been variously diagnosed with mood disorder, not otherwise specified (NOS), depression NOS, psychosis NOS, cocaine dependence, cannabis dependence, major depressive disorder, and major depression with psychosis during the time period on appeal. The October 2013 examiner did not comment on these diagnoses and whether they were caused by or related to his personality disorder diagnosis in service. In fact, the examiner stated that there was no evidence that the Veteran was ever diagnosed or treated for a psychiatric condition other than substance dependence while in service. The Board finds the October 2013 opinion to be inadequate because the rationale provided is unclear, and raises questions about current diagnoses and their relationship, if any, with the Veteran's period of service. Therefore, remand is warranted to provide the Veteran with another VA examination and opinion.

With respect to the Veteran's individual unemployability claim, at the January 2017 hearing, the Veteran testified that he was receiving Social Security Administration (SSA) disability benefits. These records are potentially relevant to the TDIU issue and must be requested. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA has an obligation to secure SSA records if there is a reasonable possibility that the records would help to substantiate the Veteran's claim).

Additionally, because the determination with respect to the claims for service connection for a low back disability, skin disability, and acquired psychiatric disorder may potentially impact the issue of individual unemployability, his individual unemployability claim is inextricably intertwined with the service connection claims and should be remanded pending their disposition. See Harris v. Derwinski, Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a significant impact" on another, and that impact in turn "could render any review by this Court of the decision [on the other claim] meaningless and a waste of judicial resources," the two claims are inextricably intertwined); see also Gurley v. Nicholson, 20 Vet. App. 573, 575 (2007) (recognizing the validity of remands based on judicial economy when issues are inextricably intertwined).

Accordingly, the case is REMANDED for the following action:

1. Obtain VA treatment records for the period from October 1990 through 1999 from Atlanta VAMC and Durham VAMC.

This must include a search of archived or retired paper records. All efforts to obtain these records, including search of archived or retired paper records, should be fully documented and a negative response must be provided if records are not available.

2. Request records from SSA pertaining to the award of disability benefits.

3. If new, pertinent evidence is obtained regarding the Veteran's claim of entitlement to a low back disability based on the development above, request an addendum opinion from the October 2013 back conditions examiner.

The examiner should indicate whether, in light of the new evidence, it is as least as likely as not (50 percent probability or more) that the Veteran's low back disability is related to his active duty service.

A complete rationale should accompany any opinion provided.

4. Obtain an addendum opinion from the October 2013 skin diseases examiner.

If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the record, and arrange to obtain an addendum opinion from an appropriate physician based on claims file review (if possible). Only arrange for the Veteran to undergo examination if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion.

The contents of the entire, electronic claims file must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran's documented medical history and assertions. 

If the Veteran is examined, all indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report).

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current skin disability or residual had its clinical onset during active service or is related to any in-service disease, event, or injury, to include as a result of described exposure to radiation. 

The examiner must provide a rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. The examiner should specifically address the findings red bumps and lesions during service and whether they related to the Veteran's diagnosed skin disorders during the appeal period. 

5. If medical evidence suggests that the Veteran has a disability for which service connection may be granted based on exposure to radiation (including ionizing), take all appropriate measures to verify any such exposure. 

If any necessary information to verify exposure is missing from the record, request that the Veteran provide the necessary information.

6. Schedule the Veteran for a new VA psychiatric examination with an examiner other than the individual who authored the October 2013 opinion. Any indicated evaluations, studies, and tests should be conducted. The examiner should note that the claims file was reviewed.

The examiner should address the following:

(A) Identify all current psychiatric disabilities, to include a personality disorder. If the Veteran is not diagnosed with a personality disorder, please comment on the accuracy of his in-service diagnosis of personality disorder with antisocial features upon separation from service. 

(B) For each currently diagnosed psychiatric disability, is it at least as likely as not (50 percent or higher probability) that such disability had on its onset in, or is otherwise related to his service? In so answering, the examiner should address the following:

 	(1) the Veteran's statement that he has been depressed since service, and 

 	(2) service treatment records documenting the Veteran's in-service psychiatric difficulties and diagnosis of personality disorder with antisocial features. See September 8, 1989, Service Treatment Record; July 26, 1990, Separation Examination.

Each opinion provided must be supported by a clear explanation consistent with the record.

7. Upon completion of the above requested development, and after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any of the benefits sought are denied, then furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012).



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs