Citation Nr: 18155880 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-60 797 DATE: December 6, 2018 ORDER New and material evidence having been received, the claim for service connection for a psychiatric disability is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), a depressive disorder, and an anxiety disorder, is remanded. FINDINGS OF FACT 1. A May 2008 Board decision determined that new and material evidence had not been received sufficient to reopen a claim for service connection for a psychiatric disability. 2. The evidence received since the May 2008 Board decision relates to an unestablished fact necessary to substantiate the claim for service connection for a psychiatric disability, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 2008 Board decision that denied reopening a claim for service connection for a psychiatric disability is final. 38 U.S.C. § 7104 (2006); 38 C.F.R. § 20.1100 (2007). 2. New and material evidence has been received to reopen the previously denied claim for service connection for a psychiatric disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1988 to June 1989. The Board has recharacterized the issue on appeal as above to better reflect the allegations made by the Veteran. Generally, a final decision issued by Board may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7104 (b). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. Here, the claim for service connection for an acquired psychiatric disorder was most-recently finally denied in a May 2008 Board decision, on the basis that a chronic acquired psychiatric disability was not incurred or aggravated during the Veteran’s active military service and that the Veteran had a personality disorder, which is not a disability for which service connection could be granted. 38 C.F.R. § 3.303(c). The May 2008 Board decision is final. The pertinent evidence received since the May 2008 Board decision includes a private medical nexus opinion from the Veteran’s private mental health provider, stating that the Veteran had PTSD as a result of his active service. This newly submitted evidence, which is presumed credible for the purposes of reopening, suggests a link between an acquired psychiatric disability and the Veteran’s military service. This opinion constitutes both new and material evidence. Thus, new and material evidence has been received, and the claim for service connection for a psychiatric disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, a depressive disorder, and an anxiety disorder, is remanded. The Veteran was afforded a PTSD VA examination in 2013. The examiner determined that the Veteran did not have PTSD, and the only other psychiatric condition diagnosed was a personality disorder. Subsequent VA medical treatment records indicate that the Veteran has been diagnosed with additional acquired psychiatric disorders pursuant to the DSM-5 criteria, specifically, an unspecified anxiety disorder and an unspecified depressive disorder. Medical opinions should be obtained to address the etiology of these psychiatric conditions. The Board also notes that a diagnosis of personality disorder was made during service, and that a VA examiner has indicated a current diagnosis of personality disorder. In this regard, the Board observes that, in general, congenital or developmental defects such as personality disorders are not considered diseases or injuries within the applicable legislation, and are not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9. See Winn v. Brown, 8 Vet. App. 510, 516 (1996), appeal dismissed, 110 F.3d 56 (Fed. Cir. 1997), and cases cited therein. See also VAOPGCPREC 82-90. However, the VA General Counsel has further noted that if, during service, superimposed disease or injury occurs, service connection may be warranted for the resultant disability. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993). See also VA VAOPGCPREC 67-90 (July 18, 1990), published at 55 Fed. Reg. 43,253 (1990); see also VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990). Thus, the VA examiner should also provide an opinion on this matter. Finally, the record reflects that the Veteran received psychiatric treatment during the appeal period from private physician Dr. Feldman., M.D., P.A., the physician who authored nexus opinions associated with the claims file on February 4, 2013 and December 17, 2014. However, the opinions were ultimately equivocal as to whether it was at least as likely as not (50 percent or greater) that the Veteran’s acquired psychiatric disability either began during or was otherwise caused by his military service. Additionally, treatment records from this provider have not been associated with the claims file, but they may contain information which could help substantiate the Veteran’s claim. As such, they should be obtained. The matter is REMANDED for the following action: 1. Obtain VA treatment records from May 2016 through the present. 2. Contact the Veteran and request that he submit or authorize for release all private treatment records associated with his treatment for psychiatric conditions, to include treatment received from Dr. Feldman. Request all treatment records from the provider(s). Any records obtained should be added to the claims file. 3. Then, schedule the Veteran for a VA psychiatric examination. The examiner should diagnose any acquired psychiatric disability using the DSM-5, to include PTSD, a depressive disorder, and an anxiety disorder. (a.) If PTSD pursuant to the DSM-5 is found, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or greater likelihood) that the Veteran’s PTSD was caused by his military service. Why or why not? In so doing, the examiner should identify the in-service stressor upon which the diagnosis is based. In so doing, the examiner should address the opinions of Dr. Feldman. (b.) If an acquired psychiatric disorder other than PTSD, to include a depressive disorder or an anxiety disorder, is found, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or greater likelihood) that such disability began during service or was otherwise caused by his military service. Why or why not? (c.) Additionally, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current diagnosed personality disorder was subject to, or aggravated by, a superimposed disease or injury in service, resulting in an additional disability. (Continued on the next page)   In answering the above questions, the examiner should specifically consider the Veteran’s statements in support of his claim and his stressor statements, including those listed in the document he submitted titled “Affidavit” and associated with the claims file on December 17, 2014. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel