Citation Nr: 21003721 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-05 953 DATE: January 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. The Veteran has a diagnosis of personality disorder, which is not a disability for which service connection may be granted. 2. Even in the alternative, finding that the Veteran’s prior diagnoses of major depressive disorder, generalized anxiety disorder, panic disorder, and posttraumatic stress disorder (PTSD) are proper, there is no probative indication of any valid stressor events or other etiology to find the development of them in service. CONCLUSION OF LAW An acquired psychiatric disability was not incurred in service. 38 U.S.C. §§ 105, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1980 to February 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided with hearing before the undersigned Veterans Law Judge (VLJ) in August 2016. A copy of the transcript has been associated with the claims file and reviewed accordingly. This claim was previously before the Board in September 2018 and February 2020 and remanded for additional development. That development having been completed; this claim is once again before the Board. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such service as shown by the service record, the official history of each organization in which the Veteran served, his or her treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is seeking service connection for an acquired psychiatric disorder, which she contends is causally connected to her active service. The Veteran claims her current psychiatric disorder is related to a traumatic event related to an injury to her daughter in service, as well as harassment she received at the time by her superiors. In April 2017, the Veteran submitted a copy of the medical records dated during her service, related to the care of her daughter after being burned by the babysitter. Suspected child abuse is noted. An April 1983 note within the Veteran’s service treatment records shows the Veteran as experiencing situational stress secondary to an incident related to alleged child abuse of her child by a babysitter. At that time, it is noted that the Veteran reported being harassed by her superiors related to her child’s injury. Further review of the Veteran’s service treatment records reveals that she was noted to be crying and appeared depressed at the time of March 1987 treatment for her left ear otitis media. In December 1990, the Veteran was again seen related to her ear and it was noted that she was tearful and anxious during the examination. Following service, mental health treatment notes show varying psychiatric diagnoses, including major depressive disorder, anxiety disorder, panic disorder, and PTSD. The records within the claims file begin in February 2012 and consistently show the Veteran reporting symptoms developing and constant thinking about things that happened while she was in the military. The Veteran was provided with a VA examination in August 2019. The examiner found that the Veteran does not meet the diagnostic criteria for PTSD and found that the Veteran's appropriate diagnosis is other specified personality disorder, which was noted as not related to the Veteran's military service. However, the examiner at great length summarized the Veteran's history and specifically noted, "Veteran is currently followed at Roudebush VAMC by a psychiatrist for medication management and a LCSW for individual therapy. Most recent mental health diagnoses include Unspecified Anxiety Disorder, Unspecified Depressive Disorder, Panic Disorder, Unspecified Personality Disorder (borderline traits)." The VA examiner gave no indication in the report that the various diagnoses within the clinical records are incorrect, but only provided an assessment of a personality disorder. The Veteran was provided with an additional VA examination in March 2020. The examiner again found that the that the Veteran does not meet the diagnostic criteria for PTSD and found that the Veteran’s appropriate diagnosis is borderline personality disorder, moderate, which was noted as not related to the Veteran’s military service. The examiner explained that the personality disorder, in combination with the Veteran’s various life events, led to maladaptive responses that could manifest as depression, anxiety, panic, etc. This, the examiner reasoned, is what made it appear that the Veteran at various times throughout the period of appeal had been diagnosed with other mental disorders such as major depressive disorder, anxiety disorder, panic disorder, PTSD, etc. However, it was indicated that these were a misdiagnosis of the manifesting symptoms of the Veteran’s life-long personality disorder. In the alternative, the examiner explained that that, even if the previous diagnoses were correct, there was no proper in-service stressor to account for the development of them, as the babysitter incident described by the Veteran as well as her treatment by her superiors would not be enough to meet the Diagnostic and Statistical Manual, 5th Edition (DSM-V) for a trauma based psychiatric disability, to include PTSD. Additionally, in-service instances of emotional symptoms did not appear to be a precursor to the development of any current psychiatric disorder, as these were merely the symptomatic manifestations of the Veteran’s longstanding personality disorder in her maladaptive responses to stimuli. Service connection may not be granted for congenital or developmental defects, including personality disorders. 38 C.F.R. §§ 3.303 (c), 4.9. VA's General Counsel has held that a congenital defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990). The presumption of soundness, however, does not apply when a condition is a congenital or developmental defect, as service connection cannot be granted for such disorder. See Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993) (noting the difference between defect and disease and further noting that service connection may be granted if the congenital or developmental condition is a disease). The Board finds that the preponderance of the evidence is against a finding that the Veteran has an acquired psychiatric disorder other than a personality disorder. As noted above, VA treatment records reflect complaints of and treatment for major depressive disorder, anxiety disorder, panic disorder, and PTSD. The Veteran was examined for mental disorders in August 2019 and March 2020. In particular, both examinations confirmed a diagnosis of personality disorder, as an axis II diagnosis but indicated there was no axis I diagnosis of any mental disorder that conformed DSM-V criteria. The examiners' conclusions were made following a review of the claims file, including the VA treatment records referenced above, medical history and current symptoms, as well as clinical observations, and a mental health examination of the Veteran. Clear explanations in support of the findings were likewise made. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Furthermore, the March 2020 examiner indicated the importance of noting that the Veteran's responses were typical of someone with a personality disorder. Although a superimposed disease or injury that occurred during military service may warrant service connection for the resultant disability, the preponderance of the evidence is against a finding of any current acquired psychiatric disability, other than a personality disorder. The VA examiners specifically found no axis I diagnosis and only an axis II diagnosis of personality disorder, that conformed to DSM-V criteria. In sum, the Veteran has a personality disorder, for which service connection may not be granted, as it is a congenital or developmental defect. The preponderance of the evidence is against a finding that the Veteran has an acquired psychiatric disorder other than personality disorder. Anxiety, depression, and panic are considered symptoms of her personality disorder and are not found to have been diagnosed as a mental disorder or mental disorders that are superimposed upon the personality disorder. (Continued on the next page)   In the alternative, even granting the widest latitude to the Veteran’s prior diagnoses of major depressive disorder, anxiety disorder, panic disorder, PTSD, the most probative evidence of record, via the March 2020 VA examiner’s opinion, has provided a well-supported rationale for why the Veteran’s claimed stressors and in-service symptoms would neither have met the criteria for a finding of the development of a trauma-based disorder, nor would they have served a precursor to the later development of such disorders, as they were merely symptoms of maladaptive responses to certain stimuli at the time of their manifestation and not representative of any longstanding disorder other than a personality disorder. Accordingly, the Board finds that entitlement to service connection for an acquired psychiatric disorder is not warranted. The benefit-of-the-doubt doctrine is not for application and the claim is denied. 38 U.S.C. § 5107 ; 38 C.F.R. §§ 3.102, 4.3. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.