Citation Nr: 1710020 Decision Date: 03/30/17 Archive Date: 04/11/17 DOCKET NO. 11-30 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety disorder, panic disorder and personality disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran had active duty service in the U.S. Air Force from November 1971 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 (mailed November 2010) rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. A timely notice of disagreement was received in February 2011, a statement of the case was issued in September 2011, and a VA Form 9 was received in November 2011. The Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge in November 2013. A transcript of the hearing is on record. In May 2014, the Board reopened the Veteran's claim for service connection and remanded the issue for additional development and medical inquiry. The case is again before the Board for appellate review. The record in this matter consists solely of electronic claims files and has been reviewed. New and relevant documentary evidence has not been added to the record since the September 2014 Supplemental Statement of the Case (SSOC). FINDINGS OF FACT 1. The Veteran has a diagnosed personality disorder not otherwise specified (NOS). 2. The Veteran has a diagnosed cannabis-related disorder NOS. 3. An acquired psychiatric disorder, to include PTSD, depression, anxiety disorder, and panic disorder, was not shown in-service or within the first post-service year and is not shown to be causally or etiologically related to a disease, injury, or event in active service. 4. The Veteran's personality disorder was not subject to a superimposed disease or injury during service. CONCLUSION OF LAW 1. A personality disorder does not constitute a disease or injury for VA compensation purposes; therefore, service connection for a personality disorder NOS is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2016). 2. The criteria for establishing service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety disorder, and panic disorder are not met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act (VCAA) provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. VA's duty to notify was satisfied by a letter sent in August 2010, prior to the initial rating decision. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and relevant post-service treatment records and providing an examination when necessary. 38 U.S.C.A §5103A (West 2014); 38 C.F.R. §3.159 (2016). Here, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. The Veteran has been medically evaluated in conjunction with this claim. All identified and available treatment records have been secured. The Veteran has been provided with VA examinations that address the contended causal relationship between the claimed disability and active service. 38 U.S.C.A. §5103A; 38 C.F.R. §3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a matter that allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claims adjudicated in this decision. See also 38 C.F.R. §§3.326, 3.327, 4.2. The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Laws and Regulations Service connection is warranted where the evidence of record establishes 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 thereby. 38 U.S.C.A. 1110 (West 2014); 38 C.F.R. 3.303(a) (2016). Establishing service connection generally requires (1) evidence of a presently existing disability; (2) 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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. §4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. §3.304(f). Service connection may be established on a presumptive basis for certain chronic diseases, such as psychosis, if such diseases are shown to have been manifested to a compensable degree within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. If the condition noted in service is not shown to be chronic, then a showing of continuity of symptomatology after service will be required to establish service connection. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology is limited to the chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). As such, the record evidence does not establish that the Veteran has one of the chronic diseases listed under 38 C.F.R. § 3.309(a), and thus the provisions of section 3.303(b) do not apply in this case. See 38 C.F.R. § 3.384 (2016) (defining the term "psychosis" for purposes of 38 C.F.R. § 3.309(a)); see also 71 Fed. Reg. 42758, 42759 (July 28, 2006) (noting that the definition of the term "psychosis" does not include depressive disorder). Service connection may also be granted for any disease diagnosed after military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. §1113(b); 38 C.F.R. §3.303(d). Personality disorders are not diseases or injuries within the meaning of the applicable legislation for VA compensation purposes. 38 C.F.R. §§3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Although a personality disorder may be capable of progressions, it is excluded from service connection as non-compensable. See O'Bryan v. McDonald, 771 F.3d 1376, 1380-81 (Fed. Cir. 2014). In any such case, the presumption of soundness would not apply. See Morris v. Shinseki, 678 F.3d 1346, 1354-56. VA regulations specifically prohibit service connection for a congenital or developmental defect, unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability of benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time that supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. §3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). Factual Background The Veteran contends that he suffers from psychiatric issues that include PTSD, depression, and anxiety. The Veteran claims that he suffers from these issues as a result of his military service. Specifically, the Veteran claims that an American-Indian hit him in the mouth while he was sitting reading a book in the barracks one day, causing him to have to defend himself by hitting the person back. The Veteran broke his hand in this altercation and subsequently had surgery to repair the damage in his hand. The Veteran also claims that his job of loading bombs on planes while in service has caused him to lose sleep and think about the people that could have been killed by the bombs he loaded. The Veteran points to one day where bombs were accidentally dropped on the pavement and that he was frightened because they could have blown up. See November 2013 Board Hearing Transcript. The Veteran claims that the incidents mentioned above have caused his psychiatric issues. The Veteran was diagnosed with a personality disorder, sociopathic type, manifested by severe explosive and narcissistic trends while in service in March 1974. See March 1974 Psychiatric Evaluation. The Veteran was subsequently separated from service under honorable conditions on the basis of safety for other personnel in his squadron. The Veteran's service treatment records do not include any other diagnoses or symptoms of any additional psychiatric disabilities. His entrance examination in November 1971 does not contain any psychiatric symptoms or diagnoses. A note in the Veteran's health record from August 1973 also indicates that there were no signs of psychiatric problems, and no drug or alcohol problems. On the Veteran's separation examination in March 1974, it was noted that the Veteran had a personality disorder, sociopathic type. It was also noted that the Veteran had no psychosis, psychoneurosis, neurosis, or any other mental or physical condition requiring processing. The Veteran's military personnel records show that he was awarded the Air Force Commendation Medal in June 1973 for his outstanding achievement while in service. In November 2002, the Veteran was diagnosed with anxiety disorder NOS and alcohol dependence. Additional potential diagnoses (rule out diagnoses) requiring further assessment of developmental history and military history were PTSD and general anxiety disorder. In a VA examination in May 2003, the Veteran was diagnosed with anxiety disorder NOS with symptoms of PTSD and major depressive features. The examining psychologist noted that the interpretations of some of these symptoms is ambiguous because of other reasons presented by the Veteran himself for the symptoms, unrelated to the target trauma which occurred in service. The psychologist further opined that perhaps this could be more clearly resolved by collateral information from the Veteran's sister. In a medical report from June 2003, a psychiatrist diagnosed the Veteran with alcohol dependence in full remission, cannabis dependence in remission, depressive disorder NOS, and PTSD symptoms. In a VA treatment note from July 2010, the Veteran was positively screened for depression and PTSD, with the Veteran stating that he has had depression since 1974. In July 2011, the Veteran was examined for PTSD by a licensed psychologist. The psychologist found that the Veteran had alcohol and cannabis dependency, personality disorder, but no psychiatric conditions secondary to personal/military sexual trauma. The psychologist noted that although the Veteran's personality disorder was identified in the military, it was developmental throughout childhood, and his personality disorder was present prior to military service. The psychologist reasoned that any claimed mood problems (i.e., depression, anxiety, panic attacks) are plausible results of the poor decision making and problem solving the Veteran is likely to employ from his personality characteristics. The psychologist further noted that the extent and severity of the symptoms cannot be determined at this time without resorting to speculation as his self-report of those symptoms was non-credible given the results of his MMPI-2. The psychologist reasoned that the Veteran's MMPI-2 profile was invalid due to gross exaggeration of his psychopathology. The profile was found to represent a non-credible pattern of reporting. Given the Veteran's self-report of his own personal history, the psychologist concluded that the Veteran's primary difficulty is a personality disorder with antisocial personality features. The psychologist noted that this leads to aggression, misinterpreting of social cues, and reflects the Veteran's longstanding pattern of interpersonal difficulties and occupational problems. The psychologist also noted that the problems from his severe personality pathology most likely result in problems the Veteran has claimed as PTSD, panic disorder, anxiety disorder, and major depressive disorder. The psychologist noted that the Veteran is in denial of having any substance abuse problems, and that the ongoing alcohol and cannabis use is a reflection of his poor decision making and problem solving from his personality characteristics. The Veteran was most recently afforded a VA examination in June 2014. After thoroughly reviewing the record, the psychologist conducting the examination found that the Veteran does not meet the criteria for PTSD under the DSM-5 criteria. The psychologist concluded that the Veteran has an unspecified personality disorder, and a possible unspecified cannabis-related disorder. The psychologist also concluded that the MMPI-2 test results were invalid. The scaled scores and queries about individual items revealed that the Veteran likely over-endorsed his level of symptomatology. The psychologist also noted that based on the findings from the review of available records, presentation during the clinical interview, descriptions provided during the administration of the CAPS-DX, and the findings from the MMPI-2, the Veteran's self-report is considered to have marginal credibility. The psychologist found that it is not at least as likely as not that any psychiatric disability had its clinical onset during active service or is related to any in-service disease, event, or injury. The psychologist also found that the Veteran more likely than not has a personality disorder, but it is not at least as likely as not that he has an additional disability due to a disease or injury superimposed upon a personality disorder as a result of his active duty service. The psychologist opined that the continuity of symptomatology since service if present is reflective of problematic personality characteristics that lead to interpersonal and motivational impairments. The psychologist provided the rationale that personality disorders by their nature are developmental and not caused by traumatic events of time spent in the military. Analysis Upon review of the foregoing evidence, the Board concludes that the Veteran is not entitled to service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety disorder, panic disorder and personality disorder. The Board finds that the Veteran does not have a psychiatric diagnosis that is eligible for service connection by VA standards. Therefore, the first element of service connection (a current disability) is not met. The Board finds that the most recent VA examinations conducted in July 2011 and June 2014 are more probative than the previous medical opinions in the Veteran's record. The 2011 and 2014 examinations were based on a thorough review of the Veteran's record, and provided an adequate rationale to the conclusions reached by the psychologists. In both examinations, the Veteran was not diagnosed with PTSD, depression, anxiety disorder, or panic disorder. In June 2014, the only disorders the Veteran was diagnosed with were a personality disorder and a cannabis-related disorder. Any previous diagnoses of anxiety, depressive disorder, or PTSD symptoms were thoroughly discussed by the psychologist and discounted as reflective of problematic personality characteristics that lead to interpersonal and motivational impairments. The psychologist in the July 2011 examination also concluded that the Veteran's claims of PTSD, panic disorder, anxiety disorder, and major depressive disorder were due to his personality pathology. Both examinations include a thorough discussion of the Veteran's lack of credibility in self-reporting his symptoms based on a non-credible pattern of reporting which is attributable to his personality disorder and antisocial personality features. On the other hand, the Board finds the examinations prior to 2011 to be less probative for several reasons. First, the November 2002 and May 2003 examinations that included a diagnosis for anxiety disorder were done so with the examiners noting that further assessment of the Veteran's developmental and military history was needed, as well as possible clarification from his sister to clarify ambiguities in the Veteran's symptoms. Additionally, in the June 2003 medical report that diagnosed the Veteran with depressive disorder (as well as alcohol and cannabis dependence), the examiner did not include an adequate rationale for the diagnosis. The examiner also failed to include an analysis of the Veteran's personality disorder and how this may have affected his other psychiatric symptoms. The July 2010 VA treatment note that included a statement from the Veteran that he had been experiencing depression since 1974 was adequately explained by the June 2014 psychologist as reflective of the Veteran's personality disorder. In regard to the Veteran's diagnosed personality disorder, VA regulations prohibit service connection for a congenital or developmental defect, unless such was subjected to a superimposed disease or injury which created additional disability. Nevertheless, the psychologist in the June 2014 examination concluded that the Veteran's personality disorder was not subjected to a superimposed disease or injury during the Veteran's service. In the absence of such, service connection for a personality disorder is precluded by law. In regard to the Veteran's diagnosed unspecified cannabis-related disorder, the STRs and personnel records are silent for any notations of cannabis abuse while in service. Therefore, the evidence does not show that the Veteran's cannabis-related disorder manifested in service. Regardless, under 38 U.S.C.A. §§ 105(a) and 1110, compensation is precluded on a direct basis when the "disability is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs." The evidence does not suggest that the Veteran's cannabis abuse can somehow otherwise be service-connected (i.e., on a secondary basis). Consequently, service connection for a cannabis-related disorder is not warranted. While the Board is sympathetic to the Veteran's claim, taking into account all of the relevant evidence of record, the preponderance of the evidence is against a finding of an etiological relationship between the Veteran's psychiatric disorders and his military service. Accordingly, the Board finds that the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety disorder, panic disorder and personality disorder must be denied. 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 v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety disorder, panic disorder and personality disorder, is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs