Citation Nr: 1800427 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-09 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1973 to November 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado that reopened a previously denied claim for service connection for schizoid personality manifested by headaches, and then denied the claim. In November 2013, the Veteran and his spouse testified before the undersigned Veterans Law Judge of the Board via videoconference hearing. A transcript of the hearing is of record. This matter was previously before the Board in November 2014. At that time, the Board recharacterized the issue into separate claims of service connection for headaches and service connection for an acquired psychiatric disorder, and remanded the matter for further development. In April 2017, the Board again remanded the service connection claims for additional evidentiary development. Thereafter, in a September 2017 rating decision, the RO granted service connection for headaches, and assigned a noncompensable rating, effective December 23, 2010. The Board finds the RO's decision for this issue constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, this issue is no longer on appellate status. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. FINDINGS OF FACT 1. There is no competent medical evidence of a psychiatric disorder, except for personality disorder; and no other psychiatric disability superimposed upon the personality disorder as a result of service. 2. A personality disorder may not be service connected as a matter of law. CONCLUSIONS OF LAW 1. A personality disorder is not a disease or injury within the meaning of the law providing compensation. 38 C.F.R. §§ 3.303, 4.9 (2017). 3. A psychiatric disorder was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran, nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Further, a review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Under these circumstances, the Board concludes that appellate review may proceed without prejudice to the Veteran. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). For the reasons expressed below, the Board finds that the service connection for an acquired psychiatric disorder is not warranted. At the outset, the Board points out that a personality disorder is not a disability for which service connection may be granted; rather, it is considered a congenital or developmental abnormality. See 38 C.F.R. § 3.303(c). As VA regulations specifically prohibit service connection for congenital or developmental defects, the Veteran's diagnosed unspecified personality disorder is, therefore, not a disability for which VA compensation benefits may be awarded. See VA examination reports dated February 2015 and May 2017. However, a superimposed acquired psychiatric disorder resulting from such personality disorder or representing an aggravation of the disorder may be service connected. See 38 C.F.R. § 4.127; 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). In this regard, and to specifically address the complex medical question of whether a separate psychiatric disorder was superimposed on the Veteran's in-service diagnosis of schizoid personality disorder, VA sought further medical opinion. See Board remands dated November 2014 and April 2017. A February 2015 VA examination report reflects a diagnosis of unspecified personality disorder rendered by a licensed clinical psychologist. The examiner indicated there was no documentation to support that the Veteran's personality disorder was aggravated by his service beyond the normal progression. The examiner also found no other mental disorder diagnosis. See Mental Disorder Disability Benefits Questionnaire (DBQ) dated February 2015. However, as the above examiner did not comment on whether the Veteran had a separate psychiatric disorder superimposed on the personality disorder, the Board found the 2015 opinion inadequate for purposes of evaluating the claim for service connection. Also, as the examiner's opinion did not reflect discussion of previous diagnoses of depression and anxiety, an addendum opinion was needed. In May 2017, an addendum opinion was provided by the same VA psychologist that rendered the 2015 opinion. Based on a comprehensive review of the Veteran's claims file, the examiner found no change in her psychiatric diagnosis of unspecified personality disorder. While acknowledging that the record reflects previous diagnoses of depression and anxiety by other mental health clinicians, the examiner found "no other psychiatric disability superimposed upon the personality disorder as a result of service." In support of her conclusion, the examiner explained that no other clinician had full access to the complete psychiatric record for the Veteran in the past. The examiner further indicated that "as a result of this access and time, a more accurate diagnosis can be made." She explained that her finding was supported by service treatment records and objective testing completed for which a diagnosis of personality disorder was made in service. Additionally, the examiner found that the other diagnoses were not viewed as credible as they were based on the Veteran's report of symptoms which were shown to be inconsistent with the clinical evidence of record. See Compensation and Pension Examination Report dated May 2017. The Board assigns the greatest probative value in the May 2017 medical opinion to support the finding that the there is no competent medical evidence of a psychiatric disorder, except for personality disorder; and there is no evidence of any other psychiatric disability superimposed upon the personality disorder diagnosed in service. The examiner provided a well-grounded conclusion supported by thorough rationale and medical evidence of record. Notably, the Board finds significant probative value in the examiner's detailed discussion of the Veteran's credibility, in which she highlights numerous discrepancies between the Veteran's histories reported as compared to the evidence of record. Likewise, the Board observes that the Veteran's statements have varied wildly and are inconsistent during reports in treatment or recollections made in connection with a claim for VA benefits. Accordingly, the Board finds that the Veteran's reports of symptoms not credible for this purpose. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, and consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Thus, such previous psychiatric diagnosis of depression and anxiety based on the Veteran's inconsistent statements are therefore not viewed as credible, and accorded significantly less probative weight. Moreover, the 2017 VA examiner noted that the Veteran's unstable moods and anxiety are symptoms consistent with schizoid personality traits, and attributable to the normal progression of his diagnosed unspecified personality disorder. In the absence of any other psychiatric disability superimposed upon the personality disorder, the Board finds that service connection for the Veteran's personality disorder is precluded by law, and therefore not warranted. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive of the issue before the Board, the claim should be denied because of the lack of legal merit or the lack of entitlement under the law). Accordingly, the claim must be denied. ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs