Citation Nr: 18140129 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 06-21 784 DATE: October 2, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. REMANDED Entitlement to an initial compensable rating for tinea versicolor is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran does not meet the criteria for a diagnosis of posttraumatic stress disorder (PTSD). 2. Clear and unmistakable evidence demonstrates that the Veteran’s acquired psychiatric disorder to include major depression and bipolar disorder existed prior to her entry to active service and did not increase in severity beyond its natural progression during active service. 3. The Veteran’s personality disorder, in and of itself, is not a compensable disability for VA purposes; the preponderance of the evidence is against a finding that an acquired psychiatric disorder was superimposed on the Veteran’s personality disorder during, or as a result of, service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include an acquired psychiatric disorder superimposed upon a personality disorder, have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 4.127. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from April 1991 to April 1995. Neither the Veteran nor her representative has raised any issues that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In December 2017, the Veteran’s representative sent notice that the Veteran’s last name changed. Her name change is reflected herein. In email correspondence in July 2018, the Veteran’s representative confirmed that she did not want a hearing regarding her claim for a compensable rating for tinea versicolor. A Supplemental Statement of the Case (SSOC) most recently was issued in April 2016 and subsequently additional evidence was associated with the record. Although a SSOC has not been issued following receipt of this evidence the evidence is cumulative of the other evidence of record regarding the issue of service connection for an acquired psychiatric disorder. Thus, a waiver of initial RO consideration is not needed. See 38 C.F.R. §§ 19.37, 20.1304. Service connection for an acquired psychiatric disorder. The Veteran states she experienced multiple traumatic incidents in service including a miscarriage requiring a D&C surgical procedure. See March 2017 Board hearing transcript. After her miscarriage in service she says she became depressed and has had depression since 1995. See September 2000 claim and March 2008 statement. She also recalls an incident wherein she got drunk and was sexually assaulted in service. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to establish service connection, the evidence must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. 3.303. For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for psychoses if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). In a case where there is no preexisting condition noted upon entry into service, a veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (1) the condition preexisted service and (2) the preexisting condition was not aggravated by service. 38 U.S.C. § 1111. The government may show a lack of aggravation by establishing by clear and unmistakable evidence “that there was no increase in disability during service or that any ‘increase in disability [was] due to the natural progress of the’ preexisting condition.” 38 U.S.C. § 1153. While a character or personality disorder may be a psychiatric disorder, it is not a disability for which service connection may be granted. 38 C.F.R. § 3.303(c). However, a disability resulting from a psychiatric disorder that is superimposed upon a personality disorder may be service connected. 38 C.F.R. § 4.27. Compensation shall not be paid if a disability is the result of the Veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301 The Board also notes that, effective March 19, 2015, VA adopted an interim rule as a final rule which among other changes replaced outdated references with references to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The rulemaking amended provisions of the Code of Federal Regulations, to include 38 C.F.R. § 4.125. It was specifically noted that the Secretary did not intend for the provisions to apply to claims that were pending before the Board (i.e., certified for appeal to the Board on or before August 4, 2014). 80 Fed. Reg. 14308 (March 19, 2015). The case at hand appears to have been pending before the Board in August 2014 after it was remanded in March 2013 and thus the DSM-IV criteria are applicable. However, as will be discussed further below, the evidence of record shows that the Veteran has a variously diagnosed psychiatric disorder per both the DSM-IV and DSM 5 criteria. Notably, mental health care providers have employed DSM-5 since its publication in May 2013. It is presumed that medical professionals have been applying the criteria applicable for the given time that the Veteran’s psychiatric diagnoses were rendered. Service treatment records show that the Veteran’s entrance examination in November 1990 evaluated her psychiatric status as normal. Service treatment records in April 1991 show that a clinical psychologist in a consultation report noted that the Veteran’s past psychiatric history was negative. The diagnosis was no evident psychopathology and to rule out a personality disorder. Service treatment records dated in January 1992 show that the Veteran had a miscarriage and in October 1992 show a history of D&C procedure and abortion. During the appeal period the Veteran’s psychiatric disorder has been variously diagnosed as major depression, personality disorder, and bipolar disorder. See, e.g., January 2005 VA examination (major depression), November 2010 VA opinion (depressive and personality disorders), May 2015 VA treatment record (depressive disorder and personality disorder) and March 2016 VA treatment record (bipolar disorder). VA treatment records in January 2016 show that the Veteran was diagnosed with bipolar disorder in 2001. VA treatment records including in October 2000, March 2005, and April 2017 indicate a diagnosis of posttraumatic stress disorder (PTSD). These records are outweighed by multiple VA examinations and opinions dated in January 2005, May 2006, November 2010, and July 2015 whereby the examiners opined that the Veteran did not meet the criteria for a diagnosis of PTSD. The Board is satisfied that the Veteran does not meet the criteria for a diagnosis of PTSD. As previously determined and noted by the Board in its January 2018 request for an expert opinion from the Veterans Health Administration (VHA), there are unfavorable VA opinions of record; however, they are inadequate as the examiners did not provide a rationale for the conclusions reached. See January 2005 VA examination (whereby the examiner opined that the Veteran’s major depression was not related to nor aggravated by service); May 2005 VA opinion (whereby the examiner opined that it is less likely than not that major depression is related to the Veteran’s miscarriage in service) and July 2015 VA examination (whereby the examiner opined that the Veteran’s distress is related to non-military experiences). In a VA opinion in November 2011 the examiner opined that the Veteran’s major depressive disorder was not aggravated by service as the Veteran had significant psychosocial stress and trauma that occurred before service, which were likely causal factors in her personality and depressive disorders. See also November 2010 VA opinion. None of the opinions addressed the Veteran’s contention that she became depressed after she had a miscarriage during service. Although a March 2016 VA opinion addressed the Veteran’s personality disorder, it is inadequate as well as the examiner did not discuss the Veteran’s contention that she became depressed in service due to her miscarriage and did not opine as to whether the Veteran has a current psychiatric disorder resulting from a mental disorder that was superimposed upon her personality disorder in service. Thus, the above opinions need not be further considered in addressing the etiology of the Veteran’s variously diagnosed psychiatric disorder. In January 2018 a VHA opinion was obtained. In response to the question whether it is at least as likely as not (50 percent or better probability) that the Veteran has an additional disability resulting from a mental disorder that was superimposed upon her personality disorder in service, the VHA examiner opined that it is less likely than not that the Veteran has an additional disability resulting from a mental disorder due to her military service. The VHA examiner’s rationale was that that the Veteran’s psychiatric disorders are the result of multiple, complex pre and post-military traumas, substance abuse, documented period of noncompliance, documented personality pathology-features of borderline and dependent personality traits, impulsivity, and primitive copying style. The VHA examiner next opined that the Veteran’s psychiatric disorder, to include mood/depressive disorders preexisted service and were not aggravated by service. The opinion was based on the evidence in the claims file, that was identified to include the following records: in June 1999 the Veteran had a diagnosis of depression and was treated for marijuana and alcohol abuse; in July 2000 she moved around from house to house trying to cope with her situation, in August 2000 her emotional stressors included marital/family stress, unemployment, homelessness, and domestic violence; in August 2000 an examiner noted that the Veteran was raised by her grandmother due to family domestic violence and eventual death of her mother; in September 2000 she had an assessment of substance induced psychosis/mood disorder and alcohol dependence; in November 2000 she wrote a letter that she suffered from depression since she was a child; in May 2001 an examiner noted that the Veteran reported being raped by her high school boyfriend when she was seventeen years old. The VHA examiner pointed out that peer-reviewed medical literature shows risk factors for the development of mood disorder/depression relevant to the Veteran that include significant trauma in childhood, adulthood, multiple stressful life events (sexual assaults, homelessness, poverty, domestic violence), parental loss during childhood, significant substance abuse, history of noncompliance treatment, and documented personality pathology. The examiner explained that the progression of mood/depressive disorder disorders differs and can range from limited impairment to debilitating conditions. Factors affecting longer time to recovery in the Veteran’s case include non-compliance or partial compliance with treatment recommendations, psychotic features, to included ones induced by drugs, pre-existing comorbid personality features, childhood maltreatment, and substance abuse. Based on its overall context, the VHA examiner’s opinion shows that there is both clear and unmistakable evidence that the Veteran’s major depressive disorder and bipolar disorder preexisted her active service and were not aggravated beyond natural progression therein and that an acquired psychiatric disorder was not superimposed on her personality disorder during service. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). The VHA examiner’s opinion is highly probative as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VHA examiner noted that in rendering the opinion there was reliance on DSM-IV and DSM-5 criteria and current peer reviewed medical literature. The Board has considered the Veteran’s lay statements and acknowledges that she is competent to give evidence about what she has experienced or observed and is competent to report her symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). She has not, however, demonstrated that she is competent to determine the nature and etiology of her psychiatric disorder as she has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that she received any special training or acquired any medical expertise in evaluating her psychiatric disorder. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Consequently, the Board gives more probative weight to the January 2018 VHA opinion discussed above. REASONS FOR REMAND Entitlement to an initial compensable rating for tinea versicolor. In September 2018 the Veteran was afforded a VA skin examination and the RO subsequently has not issued a Supplemental Statement of the Case nor has the Veteran waived initial RO review of the September 2018 VA examination. Thus the RO should be provided with the opportunity to readjudicate the Veteran’s claim in light of the September 2018 VA skin examination. On remand any outstanding VA and private treatment records need to be added to the claims file. The Board also acknowledges that at this juncture, the Veteran’s representative, Disabled American Veterans, has not had an opportunity to submit an Informal Hearing Presentation regarding the issue of an initial compensable rating for tinea versicolor. In light of the remand below, the representative will have an opportunity to submit argument at both the local level and again when the appeal is returned to the Board before final adjudication. The matter is REMANDED for the following action: 1. The RO should obtain any outstanding treatment records, VA or private. All attempts associated therewith should be memorialized in the Veteran’s claims file. 2. Afterwards, the case should be readjudicated by the Agency of Original Jurisdiction on the basis of additional evidence, to include the September 2018 VA skin examination. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mac, Counsel