Citation Nr: 20023974 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 11-05 173 DATE: April 7, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for bruxism, to include as secondary to an acquired psychiatric disorder, is denied. Entitlement to service connection for a right wrist disability is denied. FINDINGS OF FACT 1. The Veteran’s personality disorder is a congenital or developmental defect and is not a disease or injury subject to service connection, and his symptoms, to include depressed mood, anxiety, disturbances of motivation and mood, and difficulty establishing relationships, are attributable to his personality disorder. 2. The Veteran’s bruxism was not incurred in service and is not related to an in-service injury, event, or disease, and was not caused or aggravated by a service-connected disability. 3. The Veteran’s right wrist disability was not incurred in service and is not otherwise related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.310. 2. The criteria for entitlement to service connection for bruxism, to include as secondary to an acquired psychiatric disorder, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for a right wrist disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1987 to September 1991 and June 1992 to September 1992. This matter is on appeal from a September 2010 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in November 2011 and June 2018 when it was remanded for further development. Service Connection Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, the Veteran served in Southwest Asia during his second period of service. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1)(i). A “qualifying chronic disability” is a chronic disability resulting from either (1) an undiagnosed illness, or (2) a medically unexplained chronic multisymptom illness (MUCMI) that is defined by a cluster of signs or symptoms (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders). 38 C.F.R. § 3.317(a)(2)(i). Chronic in this context is defined as existing for six months or more and/or exhibiting intermittent episodes of improvement and worsening over a six-month period. 38 C.F.R. § 3.317(a)(4). A MUCMI means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs. Signs or symptoms which may be manifestations of undiagnosed illness or MUCMI include, but are not limited to fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. For example, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Acquired Psychiatric Disorder The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder. However, for reasons to be explained below, the Board finds that the most probative evidence of record establishes that the psychological symptoms experienced by the Veteran are attributable to a personality disorder. Thus, service connection for the condition on appeal is precluded by law and regulation. Every Veteran shall generally be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b). Generally, if a condition is not noted upon entrance into service, such as in this case, then to rebut the presumption of soundness at service entrance, VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran’s service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If VA fails to show by clear and unmistakable evidence that the pre-existing condition was not aggravated by active service, then the presumption of soundness has not been rebutted and the claim will be considered as a normal claim for service connection. Wagner, 370 F.3d at 1094. Under VA regulations, personality disorders are considered defects, and not “diseases or injuries” within the meaning of applicable legislation for VA disability compensation purposes. Therefore, personality disorders cannot be service connected either directly or on the basis of secondary causation or aggravation. See 38 C.F.R. § 3.303(c), 4.9, 4.127. Defects are defined as “structural or inherent abnormalities or conditions which are more or less stationary in nature.” VAOPGCPREC 82-90. Congenital or developmental “defects,” such as personality disorders, automatically rebut the presumption of soundness and are considered to have pre-existed service. 38 C.F.R. § 3.303(c); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a personality disorder is not the type of disease or injury related defect to which the presumption of soundness can apply); see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (holding that the presumption of soundness does not apply to congenital defects). However, 38 C.F.R. § 4.127 provides that disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected. See VAOPGCPREC 82-90 (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, although 38 C.F.R. § §§ 3.303(c), 4.9, and 4.127 prohibit any grant of service connection for a personality disorder, even if aggravated in service, a diagnosed psychiatric disorder may provide a basis for service connection if the evidence demonstrates the psychiatric disorder was superimposed upon a Veteran’s diagnosed personality disorder during service. In Morris v. Shinseki, the United States Court of Appeals for the Federal Circuit held that a personality disorder is not the type of disease- or injury-related defect to which the presumption of soundness applies. Morris v. Shinseki, 678 F.3d 1346, 1351 (Fed. Cir. 2012). As such, if a personality disorder is shown § 1111 is not applicable and it is not necessary to address whether clear and unmistakable evidence showed that a personality disorder preexisted service and was not aggravated by service. In this case, the Veteran was provided with a VA examination in June 2016. The examiner, a clinical neuropsychologist, opined that the Veteran “has diagnoses of personality disorders which better account for his current complaints and presentation.” The examiner discussed the Veteran’s in-service motor vehicle collision and addressed the reported symptoms, to include memory complaints and attention problems. The examiner noted that results of this evaluation were not believed to represent his current cognitive functioning to due intentional negative impression management and may not fully capture his current psychological functioning. He noted that symptom validity indices on an objective personality inventory possibly overreported psychiatric, somatic, and/or cognitive complaints. Clinical scales suggested elevated levels of depression characterized by sadness, amotivation, withdrawal, anxiety, poor self-concept, self-doubt, malaise, and somatic symptoms of depression. He noted that the results of this neuropsychological evaluation were consistent with non-credible effort and that the pattern of deficits did not match a neurological condition. In October 2016, another clinical psychologist provided an addendum opinion which stated that the Veteran’s unspecified personality disorder is not caused by, a result of, or permanently aggravated by its natural progression by his military service. She also stated that his unspecified depressive disorder is less likely than not related to service and more likely than not secondarily related to his personality disorder, history and long-term consequences of substance abuse, and post-military life stressors. She also stated that the Veteran’s opiate use disorder is less likely than not caused by or a result of his military service and more likely secondarily related to his pre-existing personality disorder. She noted that the Veteran’s diagnoses were offered with caution due to concerns regarding the credibility of the Veteran’s self-report and testing performance. The June 2016 opinion and the October 2016 addendum provided a thorough clinical evaluation of the Veteran’s psychiatric symptoms and were accompanied with a thorough rationale and summarization of the Veteran’s medical history. However, as explained in the June 2018 remand, the examiners did not address whether the Veteran’s condition was proximately due to or aggravated by a service-connected disability. As such, the Board finds that these opinions are highly probative to the extent that they address the etiology of the condition but have no probative value for determining whether additional disability is superimposed upon the personality disorder. The record reflects that the RO scheduled an additional examination to address these deficiencies in the opinions of record. However, a September 2019 examination scheduling request reflects that the examination was canceled due to a “no show.” The Board notes that the duty to assist is a two-way street and that the Veteran cannot passively wait for assistance in those circumstances where he may or should have information that is essential in obtaining relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, the issue of entitlement to service connection must be decided on the existing evidence of record. The Board acknowledges a note from a physician which notes an “[a]ffect disorder most likely related to posttraumatic stress disorder.” However, no rationale was provided for this finding and it does not address the personality disorder issue. Thus, the Board finds that it has no probative value. Additionally, the Board acknowledges the articles submitted by the Veteran which discuss the symptoms of acquired psychiatric disorders. However, these articles do not address this particular Veteran’s condition. Further, the etiology of an acquired psychiatric disorder cannot be established by mere lay opinions, even if such opinions are supported by medical literature, due to the complexity of psychiatric conditions and particularly with the presence of a diagnosed personality disorder. As such, the Board assigns no probative value to these articles for the purpose of determining the etiology of the Veteran’s condition in particular. As such, based on the record before it, the Board finds that the preponderance of the evidence is against the Veteran’s claim. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As such, service connection cannot be awarded by law and regulation, as personality disorders are not a disease or injury subject to service connection, and the claim is denied. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.310. 2. Bruxism The Veteran contends that he is entitled to service connection for bruxism (i.e., tooth grinding), to include as secondary to an acquired psychiatric disorder. Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As explained in the prior remand, the Veteran is competent to report readily observable symptoms, such as tooth grinding. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). However, as discussed above, service connection for an acquired psychiatric disorder is not warranted. Thus, as an acquired psychiatric disorder is not a service-connected disability, service connection for bruxism is not warranted on a secondary basis. Moreover, the evidence of record does not otherwise indicate that the Veteran’s bruxism was incurred in or related to an in-service injury, event, or disease. As such, entitlement to service connection for bruxism, to include as secondary to an acquired psychiatric disorder, is not warranted. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim for service connection, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Right Wrist Disability The Veteran contends that he is entitled to service connection for a right wrist disability. In this case, a May 2016 VA examination notes that the Veteran has diagnoses of right ulnar nerve entrapment from 1999 and bilateral ulnar variance and bilateral ulnar impaction syndrome from 2016. Thus, a current disability is established. Additionally, the record establishes that the Veteran sustained multiple in-service injuries. August 1987 service treatment records note a trauma to the right index finger. February 1989 service treatment records note that the Veteran was experiencing pain when using his left hand after a motor vehicle accident in March 1988. July 1988 service records note a minimally displaced avulsion fracture from the phalanx bone of the left hand with all other bones and joints normal. February 1990 service treatment records explain that this motor vehicle accident involved a collision with another car and note that the Veteran was thrown from his vehicle. However, upon review of the record, the Board finds that the Veteran’s right wrist disability was not incurred in service and is not otherwise related to an in-service event, injury, or disease. In May 2016, the Veteran was provided with a VA examination in which the examiner opined that the Veteran’s bilateral wrist ulnar variance with ulnocarpal impaction syndrome had a known etiology and therefore did not meet the criteria for a Gulf War illness. However, as explained in the June 2018 remand, the examiner did not render an opinion on direct service connection. In October 2019, physician assistant S.H. provided an addendum opinion stating that the Veteran’s condition was less likely than not incurred in or caused by service. She stated that service treatment records, to include records from the 1988 motor vehicle accident, did not support a right wrist injury or any right wrist condition while in service. She noted that records from an X-ray ordered in October 2002 note a right wrist injury 4 weeks previously. This opinion is consistent with the evidence of record and reflects consideration of the Veteran’s medical history. As such, the Board assigns a moderate to high degree of probative value to this opinion. Additionally, September 1996 treatment records furnished by the Social Security Administration (SSA) note that the Veteran reported a jammed wrist. March 1997 records note that the Veteran “had a crush-type injury to his hand and wrist” in September 1996 when he fell at work. October 2002 VA treatment records note that the Veteran had a history of right wrist pain from an injury 4 weeks prior, with no abnormalities of the bone identified. June 2018 VA treatment records note right hand pain since the injury 10 years prior. The record contains no evidence which otherwise indicates that the Veteran’s right wrist disability was incurred in service or is otherwise related to an in-service event, injury, or disease. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule is not for application, and the claim is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). C.B. Iwanowski Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, 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.