Citation Nr: 20021480 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-42 084 DATE: March 25, 2020 REMANDED Service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder based on reported in-service aggravated trauma, disability resulting from a mental disorder that is superimposed upon a personality disorder, and aggravation of a pre-existing mental health disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1959 to August 1963 in the United States Marine Corps. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder based on in-service aggravated trauma, disability resulting from a mental disorder that is superimposed upon a personality disorder, and aggravation of a pre-existing mental health disability, is remanded. The Veteran filed claims for service connection for PTSD based on aggravated trauma (in-service personal assault). See October 2016, October 2017 – VA Form VA 21-526EZ.The Veteran contends that he developed PTSD as a result of his experiences during boot camp while serving in the United States Marine Corps. The Veteran submitted several lay statements where he described abusive behavior that he experienced that included being exposed to the use of profanity, denigration, disparaging remarks based on race, watching objects thrown at recruits, and bullying. See October 2016, January 2017 – VA Form 21-0781, January 2017, May 2017 – Correspondence, April 2017, May 2017, October 2017 – Notice of Disagreement, February 2020 Affidavit. He stated that he was in constant fear after his experiences at boot camp. The Veteran described having an abusive childhood that he believes was the precipitating cause for his current psychiatric problems. He acknowledged that he was not diagnosed with any mental health disability until after military separation; however, he argues that the abuse that he experienced during service resulted in the development of his PTSD disability. He described that his thoughts from experiences at Parris Island stayed with him after separation and that it resulted in difficulty in adapting to civilian life due to feelings of distrust, anxiety, and depression. The Veteran acknowledged that he was able to attain a graduate degree in the field of psychology and currently advocates against bullying. However, he believes that he currently exhibits significant impairment in social and occupational functioning due to his PTSD which he believes is attributable to his in-service aggravated trauma experiences. The Veteran’s representative argued that the Veteran is entitled to service connection for PTSD because it was aggravated by the Veteran’s service. See February 2020 Correspondence. He pointed to private opinions in the record that indicate the Veteran’s PTSD “stems from history of child abuse and pre-existed military service.” Private opinions of record also indicated that the Veteran’s PTSD was aggravated by the Veteran’s service. The representative argues that service connection should be granted on a secondary basis as a pre-existing PTSD disability was aggravated beyond its natural progression by traumatic in-service experiences. Additionally, the Veteran’s representative argues that the Veteran’s PTSD became superimposed upon his personality disorder during service. Private psychologist, GB, noted that Veteran’s “personality disorder is superimposed on his PTSD.” See January 2020 Psychological Consultation. The Veteran submitted journal articles describing topics including experiences by Marines during boot camp, co-morbidity of mental illness and military misconduct, and cited to articles involving PSTD etiology in his Notice of Disagreement. The Board acknowledges the Veteran’s submission of journal articles regarding PTSD. The Board notes that a medical article or treatise “can provide important support when combined with an opinion of a medical professional,” if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). The Board finds it requires further development before adjudication of the claim. First, the Board notes that “[a] claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits ‘by referring to a body part or system that is disabled or by describing symptoms of the disability.” See DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011). The Board notes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Here, although the Veteran’s claim was filed as entitlement to service connection for PTSD, the Board has rephrased the issue as entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder based on reported in-service aggravated trauma (personal assault), disability resulting from a mental disorder that is superimposed upon a personality disorder, and aggravation of a pre-existing mental health disability. As such, opinion must address service connection of the following theories of entitlement: 1) service connection for PTSD and/or acquired psychiatric disorder on a direct as due to in-service injury, event, or disease as per 38 C.F.R. §§ 3.303(d), 3.304(f)(5); 2) service connection for aggravation of pre-service mental health disorder as due to in-service injury, event, or disease as per 38 C.F.R. § 3.306; and 3) service connection for disability resulting from a mental disorder that is superimposed upon a personality disorder as per 38 C.F.R. § 4.127. The Board notes that although VA regulations provide that a personality disorder is considered a “defect” that is not a “disease” or “injury” within the meaning of applicable legislation for VA disability compensation purposes and; therefore, cannot be service connected (see 38 C.F.R. §§ 3.303 (c), 4.9, 4.127, the provisions of 38 C.F.R. § 4.127 provide that a disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected. VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). Second, while there is a general consensus that the Veteran has a current PTSD disability, the opinions differ as to whether a PTSD disability was manifest during service or etiologically related to in-service trauma claimed as aggravated trauma (personal assault). Additionally, the examiners discussed the Veteran’s clinical history involving personality disorder, anxiety, depression, and childhood abuse; however, there are conflicting opinions as to whether the Veteran manifested with a pre-existing mental disorder; and if so, was a pre-existing mental disorder present, and if so, was it aggravated beyond its natural progression due to reported in-service aggravated trauma. The Board notes his entrance examination does not show that any psychological defects were noted upon entry. He is therefore presumed to have been in sound condition upon entry into service. 38 C.F.R. § 3.304(b). To overcome this presumption, clear and unmistakable evidence of preexistence must be shown, as well as clear and unmistakable evidence that it did not undergo a permanent worsening beyond the normal progression of the disability. If clear and unmistakable evidence cannot be shown for both prongs, then the presumption of soundness is not rebutted and a regular service connection analysis under 38 C.F.R. § 3.303 will control. A February 2017 VA examination diagnosed the Veteran with PTSD. Dr. NL indicated there was no other mental health disability and did not indicate the presence of any personality disorder. She opined that the Veteran’s PTSD is at least as likely as not caused by in-service injury, event, or illness. Her rationale noted that the Veteran experience in boot camp seriously aggravated his PTSD. She pointed to his medical records which indicated treatment for PTSD and reported experiences and abuse in Marine Corps boot camp. The examiner did not note that there was any conflicting medical evidence in the record. Further, the examiner relied upon reported stressors that have not been verified by VA. The Board finds that while the examiner provided an etiology opinion supporting aggravation of a PTSD disability based on reported in-service abuse, she did not adequately address the Veteran’s clinical history which indicates co-morbid mental health symptomatology including personality disorder. Additionally, service connection due to PTSD must comply with the provisions under 38 C.F.R. § 3.304 when considering reported stressors. Third, the Veteran submitted private medical evaluations from Drs. BC, JL, RS, BT, and Social Worker KF in support of his claim. The examiners opined that the Veteran was adversely affected by experiences from childhood and bootcamp and these led to the development of PTSD later in life. In the present case, no examiner has addressed the relevance of the cited journal articles in reference to the Veteran’s manifestation of PTSD or an acquired psychiatric disability. A remand is required to allow VA to attempt to corroborate the Veteran’s reported stressors. The Veteran will be given another opportunity to present any evidence that corroborates his stressors, and the VA examiner will be asked to provide an opinion as to whether the evidence indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). Upon remand, all psychiatric disorders diagnosed during the appeal period must be considered and discussed. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (A current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). Additionally, opinions as to the onset, course, etiology, and aggravation of any PSTD, acquired psychiatric disorder, or pre-existing mental disorder are required. Finally, development as to the verification of in-service stressor based on personal assault must be addressed. The Board notes that the Veteran was administered the MMPI-2 personality inventory which indicated validity concerns; but the examiner found indication of personality disorder. Discussion of any relevant details of the MMPI-2 results would greatly assist the Board in the adjudication of the claim as it relates to manifestation of personality disorder, consistency in responses, and symptom severity, and malingering. The matters are REMANDED for the following action: 1. Send the Veteran notice required for PTSD claims based on personal assaults, and allow time for a response. Advise him that evidence from other sources than his service records and evidence of behavior changes may be used to corroborate his account. Then, attempt to corroborate the Veteran’s in-service stressor based on personal assault, including aggravated trauma experienced during boot camp. If more details are needed, contact the Veteran to request the information. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his PTSD. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s VA treatment for the period from December 2018 to the present. 4. Upon completion of directives 1-3, schedule the Veteran for a VA psychiatric examination. The examination must include the administration of the disability benefits questionnaires (DBQ’s) for both PTSD and Mental Disorders and should be completed by a clinician familiar with DSM-V diagnostic criteria. The claims file, to include a copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All indicated tests should be performed and all findings should be reported in detail. (a.) With regard to the Veteran’s reported in-service stressors, which pertain to personal assault and witnessing the assaults of fellow marines, the examiner is asked to review the record, including all materials submitted by the Veteran with respect to the corroboration of his personal assaults. The examiner is asked to provide an opinion on whether, based on the examination and all other evidence, a personal assault occurred. The examiner is advised that evidence other than the Veteran’s service records may be used to corroborate the occurrence of personal assault, as well as evidence that shows behavior changes. (b.) With respect to each acquired psychiatric disability found to be present and/or diagnosed proximate to or during the pendency of the appeal, the examiner should offer an opinion on the following: i. Is it at least as likely as not that the PTSD or any acquired psychiatric disability was incurred in, caused by, or is otherwise related to, the Veteran’s service to include reported in-service stressor of aggravated trauma? If any diagnosed psychiatric disorder cannot be regarded as having had its onset during active service, the examiner should explicitly indicate so and provide an appropriate explanation as to onset, etiology, and severity of any mental disorder. ii. The examiner is advised that the Veteran’s entrance examination does not show a psychiatric diagnosis or defect, and he is there presumed to have been in sound condition upon his entrance. If the examiner finds that the Veteran’s acquired psychiatric disability preexisted his service, then the examiner is asked first, whether it is clear and unmistakable that an acquired psychiatric disability preexisted entry into active service. If yes, point it out, and then answer whether there is clear and unmistakable evidence that the disability DID NOT undergo a permanent worsening beyond the normal progression of the disability. If there is, point it out. If there is not, then the examiner is asked to presume that he entered service without a preexisting disability. iii. Provide an opinion as to whether the Veteran has a personality disorder. If so, is it at least as likely as not that the Veteran’s personality disorder was subject to a superimposed injury or disease during service? If so, identify the additional acquired psychiatric disability (i.e. PTSD, other acquired psychiatric disorder) that is superimposed upon the personality disorder. iv. In providing this opinion, the examiner should address the diagnoses already of record (i.e. anxiety, depression, PTSD). If any previously rendered acquired psychiatric diagnosis was later corrected to reflect a more accurate diagnosis, the examiner should state the same. v. The examiner must also carefully consider the record and specifically address the medical history of reported pre-service abuse, in-service aggravated trauma, and post-separation diagnosis of PTSD. Onset, etiology, and severity of any diagnoses must be based on DSM-V criteria and any relation to the reported stressor of pre-service abuse and effects of aggravated trauma experienced during service. vi. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. AMANDA E.H. GIBSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.