Citation Nr: 21001193 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-60 797 DATE: January 7, 2021 REMANDED Service connection for an acquired psychiatric disability, to include schizophrenia, posttraumatic stress disorder (PTSD), a depressive disorder, and an anxiety disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1988 to June 1989. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO reopened the previously denied claim for service connection for PTSD (also claimed as depression, anxiety and adjustment disorder) but denied the claim on the merits. In December 2014, VA received the Veteran’s Notice of Disagreement (NOD). In October 2016, the RO issued a Statement of the Case (SOC). In December 2016, VA received the Veteran’s VA Form 9 appeal to the Board. In December 2018 the Board reopened the claim of service connection, recharacterizing the claim as “service connection for PTSD, a depressive disorder, and an anxiety disorder,” and remanded the case for further development and adjudicative action. 1. Entitlement to service connection for an acquired psychiatric disability, to include schizophrenia, PTSD, a depressive disorder, and an anxiety disorder. Following recertification to the Board, the Veteran, through his representative, advanced a new theory of entitlement regarding the claim for service connection. Specifically, he now contends that he has a diagnosis of schizophrenia. Furthermore, the Veteran believes that his schizophrenia had its onset during service or, alternatively, within the one year presumptive period following service under 38 C.F.R. § 3.303(b); C.F.R. § 3.309(a) (including “psychoses”). In support of this new argument, he has submitted an August 2020 private medical opinion from J.M., Ph.D.., which provides a diagnosis of schizophrenia under the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria and asserts that the disorder had onset during service, affidavits from two siblings, and private treatment records. By way of history, during service in May 1989, the Veteran attempted suicide by overdosing on muscle relaxants following discipline for causing injury to a fellow crewman in order to, as relayed to military treatment providers, “bring attention to the situation I was in.” Service treatment records (STRs) dated May 27, 1989. During his recuperation, he was diagnosed with a personality disorder, adjustment disorder, and depression. See STRs dated June 5 and 6, 1989. In June 1989, the Veteran was discharged “by reason of convenience of the government due to personality disorder.” June 1989 notice of separation. VA law provides that personality disorders are not diseases or injuries within the meaning of the applicable legislation for purposes of service connection. See 38 C.F.R. § 3.303(c). VA regulations do not contemplate service connection for defects of developmental origin, unless such defect was subjected to a superimposed disease or injury, which created additional disability. See 3.303(c), VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). Furthermore, compensation shall not be paid if a disability is the result of the Veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301. A May 1990 VA examination provided diagnoses of adjustment disorder and a personality disorder. In February 1995, during hospitalization at a VA facility for another suicide attempt, the Veteran had admitting diagnoses of adjustment disorder and a personality disorder. See discharge summary dated February 23, 1995. VA and private treatment records dated from approximately 2010 onwards show that the Veteran also has a history of addiction to opiates and benzodiazepines, diagnosed as sedative, hypnotic or anxiolytic use intoxication/disorder, and involuntary hospitalization under Florida’s Baker Act for persistent and severe psychiatric symptoms, including suicidal ideation. See 2019 VA examination report. In addition to the diagnoses listed above, diagnoses of PTSD and bipolar disorder, by Dr. F., a private treating psychiatrist, and unspecified anxiety disorder and unspecified depressive disorder, by a September 2019 VA psychologist, are of record. See September 2019 VA examination report; Dr. F., July 2014 private medical opinion. However, the Veteran has not received a diagnosis of PTSD under the DSM. The only prior medical evidence of schizophrenia in the record during the Veteran’s extensive treatment history is a November 2015 VA psychiatric evaluation describing a history of “unspecified schizophrenia spectrum and other psychotic disorder.” The Veteran has also endorsed auditory hallucinations, hearing “ringing” and low, mumbling voices, and visual hallucinations, seeing “shadows,” a uniformed soldier saluting him, or a man on a stretcher; he believes that these hallucinations are related to two suicides he claims to have witnessed during service. See J.M., Ph.D., August 2020 private medical opinion; private psychiatric progress note dated March 9, 2014. Nevertheless, there is no diagnosis of schizophrenia under the DSM of record until the August 2020 private medical opinion from J.M., Ph.D. Moreover, the August 2020 private psychologist does not provide a rationale for his opinion that his current diagnosis of schizophrenia is the same illness from which the Veteran suffered in service. Such a rationale is necessary given that the Veteran was not diagnosed with schizophrenia in service, and conversely, was diagnosed with other mental health disorders. Pursuant to the December 2018 Board remand, in September 2019, the Veteran received a new VA examination for his psychiatric disabilities. The examiner thoroughly commented on pathology and etiology for numerous proposed diagnoses, including PTSD (no diagnosis), personality disorder (which subsumed the adjustment disorder and was noted to be a developmental defect), unspecified depressive disorder (not related to service), unspecified anxiety disorder (not related to service), and bipolar disorder (no diagnosis). However, no consideration of schizophrenia as a diagnosis was noted. As such, given conflicting medical opinions regarding the Veteran’s mental health diagnoses, and the onset thereof, a remand is necessary to obtain a new VA examination and opinion to clarify the Veteran’s diagnoses and address the newly advanced theory of service connection for schizophrenia under 38 C.F.R. § 3.303(b). The matters are REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA mental health examination by a psychiatrist or psychologist with respect to his service connection claim for an acquired psychiatric disability (now claimed as schizophrenia). The contents of the entire, electronic claims file to include a complete copy of this Remand, must be made available to the VA examiner, and the examination report should reflect full consideration of the Veteran’s documented medical history and lay assertions. All indicated tests and studies (to include psychological testing, if necessary) should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. After review of the claims file and examining the Veteran, the examiner is asked to address the following: (a.) Determine all current psychiatric diagnoses, including, but not limited to whether the Veteran has a diagnosis of schizophrenia under the DSM-5. If the examiner finds that the Veteran does not meet the criteria for a diagnosis of schizophrenia, please reconcile this opinion with the August 2020 private opinion of Dr. J.M. With regards to the diagnosed personality disorder, VA law provides that personality disorders are not diseases or injuries within the meaning of the applicable legislation for purposes of service connection, unless subjected to a superimposed disease or injury, which created additional disability. (Continued on the next page)   (b.) Is it as least as likely as not (i.e., a 50 percent probability or greater) that any diagnosed psychiatric disability, to include schizophrenia, had its onset during active service, manifested to a compensable degree within one year of separation from service, or is otherwise related to the Veteran’s active service? In particular, the VA examiner should consider the August 2020 private medical opinion from J.M., Ph.D. (providing a diagnosis of schizophrenia with onset during service), August 2020 lay statements from the Veteran’s sisters, M.A. and Z.A., private treatment records dated from November 2010 to August 2017 (submitted in September 2020), and the Veteran’s lay statements of record. In this regard, the examiner is asked to reconcile all of the Veteran’s different mental health diagnoses, and opine as to whether those diagnoses are accurate, and/or reflective of the symptom presentation(s). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.