Citation Nr: 21002188 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-42 824 DATE: January 13, 2021 REMANDED The claim of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD) and posttraumatic stress disorder (PTSD) with unspecified personality disorder is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from August 1981 to August 1984. The Veteran had additional active duty service with the United States Marine Corps from January 1986 to February 1988 and was discharged under other than honorable conditions. This matter is before the Board of Veteran’s Appeals (Board) from a December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for MDD with personality disorder. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge at the RO in Denver, Colorado in February 2020. A written transcript of that hearing has been prepared and associated with the evidence of record. The Board in April 2020 remanded the Veteran’s claim for a new VA examination which was provided in July 2020. The Board’s remand expanded the scope of the Veteran’s mental health claims to encompass any mental disorder that may be reasonably encompassed by the Veteran’s description of his claim, reported symptoms, and other information of record pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board also noted in the April 2020 remand that the Veteran’s claim for service connection had been reopened by the RO in the December 2017 rating decision and the Board proceeded on the merits of the claim. In correspondence to VA in October 2020 the Veteran indicated that he wanted a new VA examination, and barring that, a new hearing before the Board. VA in a letter to the Veteran dated November 3, 2020, asked the Veteran to clarify his request for a hearing. The Veteran in November 2020 confirmed with VA that he did not want another hearing and to proceed with his appeal. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder to include MDD, PTSD, and an unspecified personality disorder. A personality disorder is not an acquired psychiatric disorder for which service connection might potentially be granted under the applicable law and regulations. See 38 C.F.R. §§ 3.303, 4.127 (2019). Nevertheless, the Board notes that service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality (to include personality disorder), by superimposed disease or injury. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); and VAOPGCPREC 82-90. As noted above the Board remanded the Veteran’s claim for service connection for an acquired psychiatric disorder in April 2020 for a new VA examination. The examiner was asked to determine whether the Veteran’s long-standing personality disorder, as noted in the VA examinations of October 2015 and December 2017 was a pre-existing condition that existed prior to the Veteran’s military service. Additionally, the examiner was to determine whether the Veteran had a personality disorder, which he contended was based on a provisional diagnosis as he testified to in his February 2020 Board hearing. The VA examination was also to determine whether the Veteran had as a result of or due to his military service: 1) a currently diagnosed psychiatric disorder, 2) a currently diagnosed personality disorder, 3) any disorder separate and distinct from a personality disorder, 4) whether a psychiatric disorder was superimposed on top of the previously diagnosed personality disorder. The Board notes that the VA examination for mental disorders provided in July 2020 answered only whether the Veteran had a long-standing personality disorder and whether that disorder was a pre-existing condition prior to service. As such the Board finds that the VA examination did not contain all the necessary opinions requested to allow the Board to move forward on the Veteran’s claims. Therefore, this development has not been done on the remanded claims. Although regrettable, additional remand is required for full compliance with the Board’s previous remand instructions. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The matter is REMANDED for the following actions: 1. This case has been advanced on the docket. 2. Forward the Veteran’s claims folder to the VA examiner who performed the July 2020 VA examination for mental disorders for an addendum opinion. If the examiner is not available then forward the Veteran’s file to an appropriate physician with the required expertise for psychiatric claims, If the examiner feels that an in-person examination is required, please schedule an in-person examination, otherwise an addendum opinion or telehealth examination is also an option. The examiner is asked to determine: (a.) Whether the Veteran currently suffers from: 1) any personality disorder, 2) any psychiatric disorder that is either separate and distinct from a personality disorder, and 3) whether a psychiatric disorder was superimposed on top of a previously diagnosed personality disorder. The examiner is then to determine whether it is at least as likely as not that any of these diagnoses are due to or the result of the Veteran’s military service. The examiner is to indicate an answer for each diagnosed disorder. The examiner is to consider all of the evidence of record, to include, the prior examinations of record and the Veteran’s lay assertions and hearing testimony of February 12, 2020. In providing this opinion, please discuss the Veteran’s contention that his personality disorder diagnosis was only provisionally made and that he has been continuously misdiagnosed based on that past provisional diagnosis. See February 2020 Board hearing transcript; and see November 2017 Statement in Support of Claim. Further, consider his assertion that he was assaulted while in the Army in 1983. The rationale for all opinions expressed must be provided. If the examiner is unable to provide any required opinions, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question presented. 3. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal is denied, the AOJ should issue an appropriate Supplemental Statement of the Case (SSOC) and afford the Veteran and his representative an opportunity to respond and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.A. Teich, 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.