Citation Nr: 18156753 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 13-24 495 DATE: December 11, 2018 ORDER Entitlement to service connection for cyclothymic disorder is denied. Entitlement to service connection for antisocial personality disorder is denied. REMANDED Entitlement to an initial disability rating greater than 10 percent for left shoulder strain is remanded. Entitlement to an initial disability rating greater than 10 percent stress fracture left symphysis is remanded. FINDINGS OF FACT 1. The Veteran’s cyclothymic disorder is not etiologically related to active service. 2. The Veteran’s antisocial personality disorder is not secondary to a service-connected disability and does not have a disorder superimposed upon it that is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for cyclothymic disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria to establish service connection for antisocial personality disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2011 to July 2011. The Veteran appeals a January 2012 rating decision by the Agency of Original Jurisdiction (AOJ) denying service connection for antisocial personality disorder (claimed as mental condition). The AOJ also granted service connection for stress fracture left symphysis with an evaluation of 10 percent effective July 15, 2011, and chronic left shoulder strain with an evaluation of 10 percent effective July 15, 2011. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Cyclothymic Disorder The Veteran has cyclothymic disorder. See April 2015 VA examination report. He was discharged from service because he assaulted another soldier; specifically, he jumped on his back and bit his finger. See April 2011 A.P. sworn statement. Further, he was found to have some anxiety that resolved before discharge. See June 2011 report of medical assessment. As such, the crux of this case is whether the Veteran’s cyclothymic disorder is related to his symptoms in service. A VA clinician opined that it is less likely than not that the Veteran’s cyclothymic disorder was incurred in or caused by his military service. Nevertheless, the VA clinician acknowledged that the Veteran sought behavioral health treatment one time in the military because he was upset about the character of his discharge. See April 2015 VA examination report. The VA clinician then reasoned that the Veteran was not diagnosed with a psychiatric disorder at that time and “it was noted in his file that the anxiety was resolved and there was no sequelae.” See April 2015 VA examination report. The Veteran believes his cyclothymic disorder was caused by his time on active duty. The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions on complex medical matters. Whether the Veteran’s cyclothymic disorder is causally related to service cannot be determined by mere observation alone. The Board finds that determining the etiology of the Veteran’s psychiatric symptoms are not within the realm of knowledge of a non-expert, and concludes that his nexus opinion in this regard is not competent evidence and therefore not probative as to that issue. Accordingly, the Board affords more probative weight to the opinion of the April 2015 VA clinician. The opinion was drafted by a mental health professional, based on a review of the evidence in the claims file, and supported by adequate rationale. Therefore, the Board must deny the Veteran’s claim of entitlement to service connection for cyclothymic disorder because the preponderance of the evidence weighs against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Antisocial Personality Disorder The Board also recognizes that the Veteran was diagnosed with antisocial personality disorder; however, the Board finds that such a disorder is not a disability for VA purposes, and even if a mental disorder such as cyclothymic disorder is superimposed upon the Veteran’s antisocial disorder, a VA clinician has not linked that disability to service. VA regulations make clear that, except as provided in 38 C.F.R. § 3.310(a), which permit secondary service connection for disability proximately due to or the result of a service-connected disease or injury, disability resulting from personality disorders may not be service connected. 38 C.F.R. § 4.127 (2017). Disability that results from a mental disorder that is superimposed upon a personality disorder may be service-connected. 38 C.F.R. § 4.127. Here, the evidentiary record does not link the Veteran’s service-connected left shoulder or pelvis to his antisocial personality disorder. Further, even if the Veteran’s cyclothymic disorder is superimposed on his antisocial personality disorder, which the April 2015 VA clinician did not suggest, the cyclothymic disorder was not found to be etiologically related to service. See April 2015 VA examination report. Thus, entitlement to service connection for antisocial personality disorder is denied. REASONS FOR REMAND 1. Left Shoulder Strain VA afforded the Veteran a VA examination in April 2015 to assess the current severity of his left shoulder strain. However, the Board finds that the examination is inadequate for adjudication purposes. The Veteran describes flare-ups as follows: “sometimes it’s hard to pick my arm up all the way, especially when working, I have to be cautious picking up heavy stuff. It feels like there’s pinching in there too, between the shoulder blade and the top of the shoulder, in the back [and] then, when the temperature or barometric pressure changes, I get reall [sic] tender, sore.” See April 2015 VA examination report. Nevertheless, even though the Veteran reported flare-ups, the VA clinician did not provide a response as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups. Id. In Sharp v. Shulkin, the Court of Appeals for Veterans Claims (Court) held that a VA examination is inadequate when the VA clinician does not elicit relevant information as to the Veteran’s flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not “estimate the [Veteran’s] functional loss due to flares based on all the evidence of record (including the [Veteran’s] lay information) or explain why [he or she] could not do so.” 29 Vet. App. 26, 35 (2017). As the clinician did not estimate the Veteran’s functional loss due to flares based on all the evidence of record including the Veteran’s lay information or explain why he could not do so, the VA examination is inadequate for rating purposes. Considering these facts, additional VA examination of the Veteran’s left shoulder must be scheduled to determine its current severity. 2. Pelvis The Veteran last was evaluated for his service-connected stress fracture left symphysis in April 2015. See April 2015 VA examination report. In November 2018, the Veteran’s representative requested a remand for a new examination as “[t]he Veteran reported to the undersigned representative that his pelvic condition has worsened since the April 2015 examination, such that it interferes significantly with his employment in ways that it previously did not.” See November 2018 Appellant Brief. Where a Veteran contends that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A(d) (2012); see also Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). On remand, the AOJ should afford the Veteran a new VA examination to determine the current severity of his stress fracture left symphysis. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for his left shoulder and pelvis that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Schedule the Veteran for an examination of the current severity of his left shoulder and pelvis. The clinician must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If possible, this should include the range of motion for the right shoulder. The clinician must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the clinician should identify any symptoms and functional impairments due to the left shoulder and pelvis alone and discuss the effect of the Veteran’s left shoulder and pelvis on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). (CONTINUED ON THE NEXT PAGE) 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel