Citation Nr: 1806281 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 08-26 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder; other than a cognitive disability, but to include depression, anxiety, nerve condition, schizophrenia, and bipolar disorder. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1963 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. After reopening the claim, the Board remanded the matter in November 2014 for further development. The Board notes that, in the same decision, the Board declined to reopen a claim for service connection for a cognitive disability. Generally, the scope of a mental health disability claim includes any psychiatric disorder that may reasonably be encompassed by a veteran's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue of entitlement to service connection for sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's record shows diagnoses for depressive disorder, anxiety disorder, and personality disorder, but his acquired psychiatric disorders were not incurred during or caused by active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, other than a cognitive disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2016); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). While additional evidence was received subsequent to the November 2017 supplemental statement of the case, none of this evidence is pertinent to the denials of claims herein. The Veteran's new evidence does not address the core question of whether a currently diagnosed psychiatric disorder is etiologically related to service. Hence, it merits no further analysis in this decision, and the Board finds no prejudice in proceeding with its decision. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed condition, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran contends that his current acquired psychiatric disorder, to include depression, anxiety, bipolar disorder, antisocial personality disorder, and attention deficit hyperactivity disorder is related to his active service. A review of the medical evidence is negative for diagnoses of bipolar disorder and attention deficit hyperactivity disorder. The medical evidence of record shows diagnoses for depressive disorder, anxiety disorder, and a personality disorder. Specifically, a May 2016 VA examination and subsequent September 2016 addendum opinion showed the examiner concurred with prior medical providers and noted a current diagnosis of major depression. Therefore, the first requirement for service connection is met. Regarding the Veteran's personality disorder, the Veteran's medical records show he has been treated for personality disorder with schizotypal and paranoid features. It is noted that congenital and developmental defects, including personality disorders, are not considered diseases for VA purposes. See 38 C.F.R. § 3.303(c) (2016). A defect of congenital, familial or hereditary origin, such as a personality disorder, by its very nature preexist military service. See Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). Therefore, the presumption of sound condition at service entrance does not attach in the case of a personality disorder. See Quirin v. Shinseki, 22 Vet. App. 390, 397 (2002); Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects); Morris v. Shinseki, 676 F.3d 1346, 1354-56 (Fed. Cir. 2012) (finding that the presumption of soundness is not relevant with respect to personality disorders because personality disorders are not diseases or injuries and thus not compensable). So, generally speaking, service connection for a personality disorder is legally precluded. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 C.F.R. §§ 3.303(c), 4.9, 4.127. That said, under VAOPGCPREC 82-90 (July 18, 1990), a disease which is considered by medical authorities to be of familial (or hereditary) origin must, by its very nature, be found to have pre-existed a claimant's military service, but service connection could be granted if there is superimposed injury or disease in service and the preexisting disorder is aggravated (permanently increased in severity) during service). No such showing has been made in this case, however; as noted below, no causal link has been found between any psychiatric disorders and service. Therefore, to the extent the evidence of record requires the Board to consider whether service connection may be warranted for the Veteran's previously diagnosed personality disorder, the Board must deny that aspect of the Veteran's psychiatric disability claim. The Veteran's service treatment records do not show findings or diagnoses of non-cognitive psychiatric disorders. The Veteran's entrance and separation examinations are silent for any psychiatric-related medical issues, although the service treatment records do contain one notation of treatment in 1964 (stamped in both February and October) after complaints of "losing his memory." The Veteran was advised at that point to return if he had further difficulty, but no defects were found, and there is no indication of follow-up treatment for this matter. The first subsequent medical notations for psychiatric treatment in the Veteran's file are dated in 1998, approximately 31 years after discharge from active service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor weighing against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran was afforded a VA examination to determine the etiology of any acquired psychiatric disorder in May 2016. An addendum from September 2016 contains a negative nexus opinion. The examiner noted previous diagnoses for depressive disorders, anxiety disorders, and psychotic disorders in the Veteran's records; including the most recent diagnosis of major depressive disorder with anxious features. The VA examiner concurred with the recent diagnosis, but noted the major depression was currently in remission. The examiner chronologically addressed the Veteran's documented psychiatric medical history which began in 1998 and found the disorder did not incur in nor was it a result of active service. The examiner provided a thorough rationale, and explained the one reported mental health issue in the Veteran's service treatment records (STRs) from 1964 as an isolated incident after reviewing the complete STRs and separation examination. The Veteran was not diagnosed with any acquired psychiatric disorders until many years after discharge from active service, and the Board notes there is no competent, favorable medical opinion etiologically relating the Veteran's acquired psychiatric disorder to active service. The September 2016 VA opinion provided a negative nexus opinion for major depression with accompanying rationale. Given the above, the Board finds that the Veteran's acquired psychiatric disorders did not have their onset during active service or for many years thereafter, and are not related to such service. Accordingly, service connection for an acquired psychiatric disorder is not warranted. The Board acknowledges the Veteran's lay contentions of an etiological relationship between his acquired psychiatric disorders and his active service. The Veteran is competent to describe symptoms but does not have the training or credentials to provide diagnoses of, or competent opinions as to, the etiology of psychiatric disorders. See Jandreau v. Nicholson, supra. Accordingly, his lay opinion lacks probative value and is not sufficient to grant service connection. In conclusion, service connection for an acquired psychiatric disorder is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder; other than a cognitive disability, but to include depression, anxiety, nerve condition, schizophrenia, and bipolar disorder is denied. REMAND In a March 2016 rating decision, the RO denied entitlement to service connection for sleep apnea. The Veteran disagreed with the decision denying the claim in an April 2016 notice of disagreement (NOD). The NOD was filed within the requisite time period. 38 C.F.R. §§ 20.201, 20.302. To date, the RO has not issued a statement of the case (SOC) addressing service connection for sleep apnea. A Decision Review Officer (DRO) processing letter was furnished in May 2016, but no further action has been taken, and nearly two years have elapsed since that letter was issued. As such, the Board finds it necessary to remand this case to address this procedural deficiency. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The Veteran and his representative must be furnished with a SOC addressing the issue of whether the Veteran is entitled to service connection for sleep apnea. This issuance must address the Veteran's rights and responsibilities in perfecting an appeal on this issue. Only the appeal is denied and subsequently perfected should this matter be returned to the Board. The Veteran has the right to submit additional evidence and arguments on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs