Citation Nr: 18144376 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-30 751 DATE: October 24, 2018 ORDER New and material evidence having been received, the appeal to reopen a claim for entitlement to service connection for an acquired psychiatric disability is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. FINDINGS OF FACT 1. A July 2000 Board decision declined to reopen the Veteran’s claim for service connection for an acquired psychiatric disability; the Veteran has not submitted a motion for reconsideration of the July 2000 Board decision and did not timely appeal that decision. 2. Evidence received since the July 2000 Board decision is new and relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for an acquired psychiatric disability. CONCLUSIONS OF LAW 1. The July 2000 Board decision, which declined to reopen the Veteran’s claim for service connection for an acquired psychiatric disability, is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 20.1100 (2017). 2. New and material evidence having been received, the claim for entitlement to service connection for an acquired psychiatric disability is reopened. 38 U.S.C. §§ 5103A, 5108, 7104 (2012); 38 C.F.R. §§ 3.156 (a), 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Air Force from December 1978 to June 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran submitted a claim for entitlement to service connection for a mental health problem. A veteran does not file a claim to receive benefits for a particular psychiatric disability that is named on a claims form, but instead makes a general claim for compensation for the difficulties posed by the mental disability. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has reframed the issue on appeal. Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Legal Criteria - New and Material Evidence A Board decision is final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis. 38 U.S.C. § 7104. A Board decision becomes final on the date stamped on the face of the decision, unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103, 7104; 38 C.F.R. § 20.1100. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is existing evidence not previously submitted to VA. Material evidence is 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted as enabling reopening of a claim, rather than to precluding it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not exclusively on whether the additional evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. Thus, evidence is new and material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation during service of a preexisting injury or disease. 38 U.S.C. §§ 1110, 1131. To establish service connection for a disability on a direct-incurrence basis, a veteran 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 present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303. A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will also be service-connected. 38 C.F.R. § 3.310 (b). Psychoses are subject to presumptive service connection if manifested to a degree of ten percent or more disabling within one year after discharge from service. 38 C.F.R. §§ 3.307, 3.309 (a). The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5) defines psychoses as: (a) brief psychotic disorder; (b) delusional disorder; (c) psychotic disorder due to another medical condition; (d) other specified schizophrenia spectrum and other psychotic disorder; (e) schizoaffective disorder (f) schizophrenia; (g) schizophrenum disorder; and (h) substance/medication-induced psychotic disorder. 38 C.F.R. § 3.384. Personality disorders are not considered diseases or injuries for compensation purposes and, except as provided in § 3.310 (a), disability resulting from them may not be service-connected. However, disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected. 38 C.F.R. § 4.127. Analysis This appeal has a long procedural history dating back to June 1980, when the Veteran filed a claim for service connection for a mental health condition. The RO denied the claim in an October 1980 rating decision. The Veteran appealed the decision to the Board, which remanded the appeal in August 1982. After additional development, the Board denied the claim in September 1984. The Veteran filed a request to reopen his claim for service connection in April 1985. In September 1985, the RO issued a decision continuing the previous denial. The Veteran again appealed to the Board, which remanded the decision in March 1987. The Board continued the denial in December 1988. The Veteran filed a claim for service connection for schizoaffective disorder in October 1989. A November 1989 rating decision denied the claim, finding that the new diagnosis did not change VA’s prior determination denying service connection for an acquired psychiatric disability. The Veteran filed a request to reopen his claim in December 1994. A September 1995 rating decision denied the claim, finding that new and material evidence had not been submitted. The veteran filed an additional request to reopen in May 1997. An August 1997 rating decision denied the claim, finding that new and material evidence had not been submitted. The Veteran appealed that decision to the Board, which denied the claim in July 2000. A motion for reconsideration was filed, and subsequently denied in September 2000. Thereafter, a motion for revision was filed in February 2001, and denied in March 2001. Since no appeal was filed within the allotted period, the July 2000 Board decision became final. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100, 20.1104. The Veteran filed a request to reopen his claim in June 2013. The RO denied his claim in an April 2014 rating decision, finding that new and material evidence had not been submitted. The Veteran filed a notice of disagreement in September 2014, a statement of the case was issued in May 2016, and the Veteran filed a Form 9 in June 2016. This is the decision on appeal. For evidence to be new and material in this case, it would have to tend to show the existence of an acquired psychiatric disability and a causal relationship between the disability and an in-service injury, event or disease. See 38 C.F.R. § 3.156 (a). Evidence submitted since the July 2000 rating decision includes a nexus opinion from C.K., a licensed professional counselor (LPC), dated October 2017. C.K. interviewed the Veteran, and opined that the Veteran showed symptoms of diagnosed schizoaffective disorder and bipolar disorder during military service and within one year of discharge. He further opined that the Veteran’s schizoaffective disorder and bipolar disorder more likely than not originated in military service. The Board finds that C.K.’s opinions constitute new and material evidence. The opinions are new because they were not of record at the time of the prior final denial, and are material because they relate to an unestablished fact necessary to substantiate the Veteran’s claim, a possible relationship to service. Considering the foregoing, the claim is reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND The reopened claim must be remanded for further development, including a VA medical opinion. VA’s duty to assist includes providing a medical opinion when evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 U.S.C § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board finds that the medical evidence of record is in conflict about whether the Veteran has a personality disorder, psychosis, or other acquired psychiatric disability to include bipolar disorder, and further clarification is necessary. The Veteran’s entry on duty examination did not document any psychiatric disabilities. However, service treatment records indicate that he was referred for a psychological evaluation in May 1980 after being suspected of making bomb threats. The treating psychologist diagnosed the Veteran with “immature personality, chronic, moderate as manifested…” and indicated that the Veteran exhibited a character and behavior disorder. He found the Veteran to be free from mental disease or defect, and he stated that “with proper supervision [the Veteran] can be a productive airman.” The Veteran’s separation from service examination did not document any psychiatric disabilities or nervous trouble. The Veteran’s Form DD-214 reflects that he received a discharge under honorable conditions, with the narrative reason for separation being that the Veteran had “unsuitable apathy, defective attitude.” VA medical records from April 1982 indicate that the Veteran was diagnosed with paranoid personality disorder. He was referred for a psychological evaluation, and the clinician diagnosed psychotic delusions, paranoid, narcissistic, and aggressive-antisocial. The clinician indicated that the Veteran may have been diagnosed as “schizophrenic, paranoid type” in the past, but that there is evidence of a chronic or periodically severe pathology in the Veteran’s overall personality structure. However, that same month, a different clinician, Dr. G.D., opined that the Veteran had bipolar disorder, manic, manifested by episodes of staying awake, working all night, being hyperverbal, etc. The Veteran had a VA medical examination in July 1983. The examiner listed a history of manic-depressive illness which “possibly could have begun while still in the Service.” The current diagnosis was bipolar affective disorder (cyclothymic personality). The Veteran was afforded an additional VA psychiatric examination with the same examiner in November 1983. After interviewing the Veteran, the examiner diagnosed histrionic personality disorder, and indicated that the condition was present during service, but did not diagnose bipolar disorder. The Veteran was hospitalized at a VA medical center (VAMC) between October and December 1985. The treating physicians, Dr. G.M. and Dr. D.C., diagnosed bipolar disorder. Dr. D.C. wrote that “it is felt that the patient’s symptoms and behavior first manifested itself while he was in the service…it is felt by [Dr. G.M.] and myself that these symptoms were misdiagnosed as a personality disorder at the time.” They opined that bipolar disorder was more likely due to the episodic nature of the Veteran’s illness as well as his “good interepisodic functioning.” Dr. G.M. provided an additional opinion received in November 1987. He believed the correct diagnosis for the Veteran should have been the early stages of bipolar, manic, rather than a personality disorder. In February 1989, the Veteran sought treatment at a VAMC. The treating physician, Dr. L.M., diagnosed schizoaffective disorder versus bipolar disorder. He noted that the Veteran had a history of schizoaffective disorder versus bipolar affective disorder. In April 1995, the Veteran was hospitalized at a VAMC due to his psychiatric conditions. The treating physician noted that the Veteran had a history of bipolar disorder and schizoaffective disorder. The Veteran was hospitalized again in September 1996, and the physician indicated that the Veteran carried a diagnosis of bipolar disorder for the past ten years. The Veteran was admitted in October 1996 for suicidal ideation, threats, and non-compliance with medications. The discharge summary listed a diagnosis of bipolar disorder with psychotic features. The Veteran continued to receive VA mental health care over the course of the appeal. The Veteran’s active psychiatric conditions were consistently listed as bipolar disorder not otherwise specified, unspecified personality disorder, and schizoaffective disorder, chronic. In February 2014, a VA physician listed a diagnosis of schizophrenia and unspecified personality disorder. The Veteran submitted an opinion from C.K., LPC, dated October 2017. C.K. interviewed the Veteran, and opined that the Veteran showed symptoms of schizoaffective disorder and bipolar disorder during military service and within one year of discharge. He further opined that the Veteran’s schizoaffective disorder and bipolar disorder more likely than not originated in military service. The Board notes that C.K. is not a medical doctor, and hence, has not been shown to have the requisite medical expertise or knowledge to be deemed competent, for VA purposes, to diagnose or address the relative severity of a medical condition such as bipolar disorder or schizoaffective disorder, as such is a complex medical matter. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, his report of the Veteran’s symptoms can still be considered as competent lay evidence. As a matter of law, VA cannot grant service connection for a personality disorder, or for aggravation of a personality disorder while in military service. Morris v. Shinseki, 678 F.3d 1346, 1356 (Fed. Cir. 2012); see also 38 C.F.R. §§ 3.303 (c); 3.310 (a), 4.127. VA may grant service connection under such conditions only when another mental disorder is “superimposed” upon a personality disorder. Superimposed is not defined in the regulations, but a common definition is that one thing is placed over another, typically so that both are still evident. See Carpenter v. Brown, 8 Vet. App. 240 (1995) (personality disorders are not considered disabilities for rating purposes, but properly diagnosed superimposed psychotic disorders developing after enlistment, are to be considered disabilities rated analogous to schizophrenia). In May 1980, the treating psychologist diagnosed a personality disorder. This was confirmed by the November 1983 VA examiner, despite the same examiner originally diagnosing manic depressive illness in July 1983. As indicated above, personality disorders are not considered disabilities for which VA may grant service connection. 38 C.F.R. § 4.127. However, some of the medical evidence of record attributes the Veteran’s symptoms to bipolar disorder, which is considered an acquired psychiatric disability for VA disability compensation purposes. See 38 C.F.R. § 4.130, Diagnostic Code 9432. There is also evidence, provided by Dr. L.M. and others, that attributes the Veteran’s symptoms to schizoaffective disorder, which is considered a psychosis by the DSM-5, and thus subject to presumptive service connection if it manifested to a degree of ten percent or more disabling within a year of discharge. 38 C.F.R. §§ 3.307 (a), 3.309 (e). In sum, there are at least three conflicting diagnoses of record that all have different implications for VA compensation purposes. The Board may not substitute its own judgment for that of a medical expert, and is not qualified to attribute the Veteran’s symptoms to any of the indicated conditions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board finds that an additional VA medical opinion is necessary to clarify conflicting diagnoses, and determine whether any such diagnoses are etiologically related to military service, or manifested within one year following active duty service. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86. The Veteran receives VA mental health care for the conditions noted on appeal; therefore, any outstanding, relevant VA treatment records should be procured. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2014 to the Present. 2. Thereafter, forward the Veteran’s claims file to a VA psychiatric examiner for an addendum medical opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. The examiner is asked to determine the nature and etiology of any psychiatric disability demonstrated proximate to or during the appeal period. The claims file should be made available for review, and the medical opinion should note that such review has been completed. After reviewing the claims file, the examiner is asked to address the following: a. Is it at least as likely as not (50 percent probability or greater) that any diagnosed acquired psychiatric disability is etiologically related to military service? b. If the Veteran is diagnosed with a personality disorder, is it is at least as likely as not (50 percent probability or greater) that another disability was superimposed on a personality disorder during active service and resulted in additional disability? c. If the Veteran is determined to have a psychosis as defined by DSM-5, is it at least as likely as not (50 percent probability or greater) that such psychosis manifested during or within 1 year of military service? To the extent possible, the VA examiner should reconcile his/her opinions with the opinions of the July/November 1983 VA examiner, Dr. G.D., Drs. G.M. and D.C., Dr. L.M., and C.K., LPC. The medical opinion must include a complete rationale for all opinions expressed. The examiner is reminded that the term “at least as likely as not,” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. 3. Thereafter, readjudicate the appeal. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. After allowing an appropriate period for response, return the appeal to the Board for review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel