Citation Nr: 19122425 Decision Date: 03/26/19 Archive Date: 03/25/19 DOCKET NO. 17-61 198 DATE: March 26, 2019 ORDER Entitlement to nonservice-connected pension benefits is denied. As new and material evidence has been received to reopen a claim of entitlement to service connection for depression, the appeal is allowed to that extent. As new and material evidence has been received to reopen a claim of entitlement to service connection for anxiety, the appeal is allowed to that extent. REMANDED Entitlement to service connection for an acquired psychiatric disability, inclusive of depression and anxiety, is remanded. Entitlement to service connection for a substantive abuse disability is remanded. Entitlement to service connection for a sleep disability is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran did not serve during a period of war. 2. In a January 2009 decision, the RO denied the Veteran’s claim for service connection for depression; the Veteran did not perfect an appeal of that decision or submit new and material evidence within one year of notification of it; in a June 2016 final and binding decision, the RO found that new and material evidence had not been received to reopen this claim. 3. Also in that June 2016 decision, the RO denied the Veteran’s claim for service connection for anxiety; the Veteran did not perfect an appeal of that decision or submit new and material evidence within one year of notification of it, so it also became a final and binding determination regarding this claim. 4. Additional evidence has been received since those last final and binding denials of these claims for service connection for depression and anxiety, however, and some of it is not cumulative or redundant of the evidence considered in the prior decisions concerning these claims, relates to an unestablished fact needed to substantiate these claims, and raises a reasonable possibility of substantiating them. CONCLUSIONS OF LAW 1. The criteria for nonservice-connected pension benefits have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.2, 3.3, 3.6. 2. There is new and material evidence to reopen the claims of entitlement to service connection for depression and anxiety. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1978 to May 1980. These matters come before the Board of Veterans’ Appeals (Board) from an October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Nonservice-Connected Pension 1. Entitlement to nonservice-connected pension The Veteran is claiming entitlement to nonservice-connected pension benefits. By statute, VA shall pay to each veteran of a period of war who meets the service requirements specified, and who is permanently and totally disabled from a nonservice-connected disability not the result of the veteran’s willful misconduct, a pension at the rate prescribed. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.3. A veteran meets the service requirements for pension if he served in active military, naval, or air service (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(3). The term “period of war” for pension purposes means the Mexican Border Period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of War by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. 38 U.S.C.A. § 1501 (4); 38 C.F.R. § 3.2. Based on a review of the record, the Board finds that the criteria for basic eligibility for nonservice-connected pension benefits have not been met, as a matter of law, because the Veteran did not serve during a period of war as defined in the applicable statutes and regulations. See 38 U.S.C.A. §§ 1501, 1521; 38 C.F.R. §§ 3.2, 3.3. The Veteran entered service in January 1978 and was discharged in May 1980. The Vietnam War had ended on May 7, 1975, and the Persian Gulf War did not begin until August 2, 1990. His service, therefore, was in the interim. There was no period of war for VA purposes during his period of service. Consequently, the Board finds that there is no legal entitlement to nonservice-connected pension. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). New and Material Evidence 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for depression In a January 2009 rating decision, the RO denied the Veteran’s claim for service connection for depression. At the time of that denial, the claims file included the Veteran’s service treatment records (STRs) and VA medical records noting a diagnosis of bipolar disorder with depression. The RO denied the claim because the evidence did not support a finding that the Veteran had depression because of his military service. He did not appeal that decision, so it became a final and binding determination based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. In March 2016, the Veteran attempted to reopen this claim. To this end he submitted a VA Form 21-0781a, on which he stated that, while in service, he took a civilian flight and no one was able to tell him where he needed to go, and that when he arrived on his ship he succumbed to peer pressure and got high to relieve stress and anxiety. He also stated that, one time while on liberty, he was approached by three Muslims who said things which he did not understand and taunted him until his wife yelled and a group of people “came over and scared the Muslims away.” In a June 2016 rating decision, the RO found that new and material evidence had not been received and, thus, denied the Veteran’s petition to reopen this claim. At that time, the claims file included the prior evidence as well as VA clinical records noting a diagnosis of opioid-use disorder, a provisional diagnosis of unspecified bipolar disorder, and that he was on medication for depression, hyperarousal/trauma-related nightmares, and intermittent insomnia. He again did not file a timely appeal, so that June 2016 decision also became a final and binding determination based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. In July 2017 the Veteran filed another petition to reopen this claim and, in support of it, submitted lay statements, written articles, Social Security Administration (SSA) records, and a Disability Benefits Questionnaire (DBQ). The August 2018 DBQ reflects the opinion of the examiner that the Veteran has a diagnosis of bipolar disorder which is more likely than not due to his military service. The report indicates the Veteran said his mental health issues began during his time in service, that his parents divorced when he was in the military, and that he self-medicated with drugs and alcohol to deal with the military service stress. Because the DBQ examiner found that the Veteran’s symptoms of bipolar disorder included depressed mood, the Board finds, under the low threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010), that new and material evidence has been received to reopen this claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for anxiety Also in that June 2016 rating decision, the RO denied service connection for anxiety. At the time of that denial, the evidence included the Veteran’s STRs, service personnel records (SPRs), his statements, and VA clinical records.   The clinical records noted the Veteran was on medication for insomnia/anxiety. And, as already mentioned, the evidence also included a VA Form 21-0781a dated in March 2016 describing his experiences in service. But although his claim was denied, he did not file a timely appeal, so that June 2016 decision also became a final and binding determination as relating to this claim for anxiety, just as it did in the attempt to reopen the claim for depression. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 In July 2017, the Veteran filed a claim for service connection for “mental health conditions” and a claim for “anxiety”. And, as already discussed, an August 2018 DBQ reflects that the Veteran has a diagnosis of bipolar disorder – which, according to the examiner, as likely as not began in service. Also notably, however, the DBQ additionally indicated that the Veteran’s symptoms of bipolar disorder included anxiety. Because the DBQ examiner found that the Veteran’s symptoms of bipolar disorder included anxiety, the Board finds, under the low threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010), that new and material evidence also has been received as concerning this ancillary claim for anxiety. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 4. Entitlement to service connection for an acquired psychiatric disability, inclusive of depression and anxiety, is remanded Pursuant to the Court’s holding in Clemons v. Shinseki, 23 Vet. App (2009), the Board finds that the newly-reopened claims for depression and anxiety should be recharacterized more generally into one claim of entitlement to service connection for an acquired psychiatric disability (to include depression, anxiety, bipolar disorder, and possibly substance-abuse disorder). Regarding the latter, as a general matter, VA law and regulations preclude an award of direct service connection for disability that originated due to substance abuse, as this is deemed to constitute willful misconduct on the part of the claimant. 38 U.S.C. § 105(a); 38 C.F.R. § 3.301(b), (d); VAOPGPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, has held that there can be compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a Veteran's service-connected disability. See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001) (indicating that Veterans could only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder."). So to show entitlement to service connection for his substance abuse disorder, the Veteran will need to first establish his entitlement to service connection for his psychiatric disorder and then show that his substance abuse disorder is secondary to, or a symptom of, his psychiatric disorder – bearing in mind he alleges the substance abuse was merely to mask or help him deal with the symptoms resulting from his psychiatric disorder. The Board has considered the August 2018 DBQ but finds that it is insufficient to warrant service connection because the examiner relied on inconsistent information and did not review potentially pertinent evidence. For instance, she relied on the 2018 statements of the Veteran’s brother and sister as to the Veteran’s emotional state prior to service to support her finding that his symptoms arose in service; however, she failed to acknowledge that, while the brother and sister stated that the Veteran never used drugs or drank alcohol before service, that contention is totally contrary to the Veteran’s statements, including a statement in May 1979 that he had used drugs prior to service and an August 2001 VA clinical record indicating he had started drinking alcohol at age 13 and had started using drugs at age 15. Also notably, the DBQ examiner did not discuss or acknowledge that the Veteran had dropped out of high school prior to service, has reported believing he was abused as a child (see November 2000 VA clinical record), had “possible” physical and psychological “abuse” as a child, and reported that he did not have physical or psychological abuse as an adult (see October 2001 VA clinical record). If true, all of this seems inconsistent with the siblings’ statements regarding his behavior and upbringing prior to service. The Veteran also has reported having nightmares related to a physical assault (see August 2001 and January 2016 VA records), but he has not alleged a physical assault in service, was not in combat, and has denied noncombat trauma (see November 2000 VA record). Moreover, the DBQ examiner did not review the post-service records prior to 2002, which include a November 2000 notation that the Veteran had long-standing anti-social behavior beginning in late childhood and a diagnosis of personality disorder. Regarding the latter, in general personality disorders are "defects" that are not "diseases" or "injuries" within the meaning of applicable legislation for VA disability compensation purposes and, therefore, cannot be service connected. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Congenital or developmental "defects," such as a personality disorders, automatically rebut the presumption of soundness and therefore are considered to have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9; Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (finding that the Secretary's exclusion of personality disorders from "diseases" or "injuries" as a congenital defect, such that the presumption of soundness does not apply, to be a valid exercise of the authority granted to the Secretary). As such, "[s]ervice connection of personality disorders, whether on a direct basis or by aggravation, is...prohibited...." 61 Fed. Reg. 52,695. But 38 C.F.R. § 4.127 provides that a disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected, and, in accordance with 38 C.F.R. § 3.310(a), personality disorders that result from service-connected disabilities may be service connected on a secondary basis. See VAOPGCPREC 82-90 (July 18, 1990) (noting that congenital and developmental defects can be subject to superimposed disease or injury such that service connection may be granted where the superimposed disease or injury occurs during service). Therefore, while 38 C.F.R. §§ 3.303(c), 4.9, and 4.127 prohibit any grant of service connection for a personality disorder, the Veteran's other diagnosed psychiatric disorders may provide a basis for service connection if the evidence shows these disorders are superimposed upon his diagnosed personality disorder. Finally, the Veteran also reported to the DBQ examiner that his parents had divorced while he was in service; however, the clinical records reflect that the Veteran’s parents divorced when he was younger and that he spent time in both parents’ households, and even though they were divorced he was reared by both of them (see November 2000 VA clinical record). In sum, the Veteran and/or his siblings were not altogether forthcoming when recounting his life prior to service. As the RO has not re-adjudicated these newly-reopened claims, the Board doing so in the first instance would be premature and, absent a complete granting of the claims or waiver of this right, prejudicial. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). That said, although the August 2018 DBQ is insufficient reason to grant service connection, it does meet the criteria for VA to provide an examination to obtain further comment concerning the origins of the Veteran’s mental illness(es) – including especially in terms of its/their purported relationship with his military service. McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). In addition, a November 2000 VA clinical record reflects that the Veteran received in-patient treatment at the Wilkes Barre VA Medical Center (VAMC) VAMC in 1999. However, the earliest VA record in evidence is from 2000. All VA treatment records are within the agency’s constructive possession, if not actual, so VA is required to obtain them. See Bell v. Derwinski, 2 Vet. App. 611 (1992).   5. Entitlement to service connection for substance abuse is remanded, AND 6. Entitlement to service connection for a sleep disability is remanded, AND 7. Entitlement to service connection for hypertension is remanded. These claims are “inextricably intertwined” with the claim of entitlement to service connection for an acquired psychiatric disability; thus, these other claims also must be remanded. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are “inextricably intertwined” when the adjudication of one claim could have a significant impact on the adjudication of another claim(s)). In this circumstance, since they have common parameters, the claims should be adjudicated concurrently rather than piecemeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, these matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period prior to 2000, to include especially from the Wilkes Barre VAMC concerning evaluation and/or treatment there in 1999. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of all acquired psychiatric disabilities shown to be present. In particular, an opinion is needed as to whether it is at least as likely as not (50 percent or greater probability) the disorder is related to or the result of the Veteran’s military service. In making this important determination, the evaluating clinician should consider the pertinent evidence of record to include: a.) the evidence that the Veteran dropped out of high school and began using illegal drugs and alcohol prior to service (see August 2001 VA record and May 1979 STR); b.) the Veteran’s STRs; c.) the VA clinical records; d.) the August 2018 DBQ with associated articles and letters from the Veteran’s siblings; e.) the Veteran’s contention of possible physical and psychological abuse as a child (see November 2000 and October 2001 VA records); f.) the notations that the Veteran had long-standing anti-social behavior beginning in late childhood (see November 2000 VA clinical record); and g.) the various diagnoses of personality disorder, bipolar disorder, anxiety, depression, and substance abuse. 3. If the clinician opines that it is as likely as not (50 percent or greater probability) that the Veteran has an acquired psychiatric disability owing to his service, the evaluating clinician should also opine on whether the Veteran has a separate sleep disability and/or substance abuse disability that is/are as likely as not caused OR being aggravated by his acquired psychiatric disability, or if instead they are symptoms of his acquired psychiatric disability but not a separate diagnosis. 4. If the clinician opines that it is as likely as not (50 percent or greater probability) that the Veteran has an acquired psychiatric disability related to service, the clinician should also opine on whether the Veteran’s hypertension is as likely as not (50 percent or greater probability) casually related to, or aggravated by, his acquired psychiatric disability.   Any finding of aggravation should include the Veteran’s baseline degree of disability prior to aggravation, i.e., the degree of aggravation. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Also, when responding, it is essential the examiner provide discussion of the underlying rationale, regardless of whether favorable or unfavorable to the claims. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard