Citation Nr: 21071935 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-12 690 DATE: December 1, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Army from December 1982 to June 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied entitlement to service connection for an acquired psychiatric disorder. This decision was appealed in a notice of disagreement (NOD) received by VA in August 2016. A Statement of the Case (SOC) was issued by VA in January 2018. VA received the appellant's Substantive Appeal (Form 9) in March 2018, perfecting the appeal and declining an optional hearing before the Board. Supplemental Statements of the Case (SSOC) have been issued by VA in September 2019 and September 2021. This case was first before the Board in April 2019, at which time the claim was remanded for additional development, to include providing the appellant with a VA examination. After completion of this development, the claim was returned to the Board and denied in a February 2020 Board decision. The February 2020 denial of service connection by the Board was appealed to the Court of Appeals for Veterans Claims. In January 2021, appellant's attorney representative and VA's Office of General Counsel (OGC) submitted a Joint Motion for Partial Remand (JMPR) because the July 2019 VA examination and the February 2020 Board decision did not address whether the current psychiatric disorders were superimposed upon the diagnosed personality disorder. The previous Board decision was vacated, and the issue was remanded to the Board in a January 2021 order. The claim was remanded by the Board in a May 2021 decision for further development, consistent with the January 2021 JMPR. As an initial matter, the Board must acknowledge arguments made by the appellant's attorney regarding the appellant's credibility. The appellant's attorney has argued that because the January 2021 JMPR and the May 2021 Board decision did not make adverse credibility findings against the appellant, they make implicit findings that the appellant's lay reports of symptoms are credible. The appellant's attorney has raised this argument in light of the August 2021 VA examination, in which the examiner provided substantial evidence and reasoning as to why the Board should not find the appellant credible with regards to his reports of his symptoms and his severity. In Smith v. Wilkie, 32 Vet. App. 332, 340 (2020), the Court held that the Board violates principles of fair process when it changes an earlier favorable credibility determination (or implicit credibility determination) without notifying the claimant or providing him or her an opportunity to respond to the credibility-determination change. As such, insofar as the appellant and his attorney believe he has been implicitly found credible, this remand serves as notice that an adverse credibility determination may be made against the appellant during the course of further proceedings on this claim, including in light of the medical examiner's findings. If the appellant or his representative have evidence or argument with respect to the appellant's credibility that they wish to submit while this claim is before the RO, they may do so at any time. That said, the Board would, at this time, point out to the appellant's attorney that whether the appellant's reports of symptoms in service are credible is of little consequence in the determination of this claim. The evidence of record does not include anything that shows the appellant has the necessary training or experience to determine that any symptoms he experienced during his period of active service were due to an acquired psychiatric disorder rather than the diagnosed personality disorder, as has been suggested by the VA examination. Notwithstanding, the Board again reiterates that no credibility findings have yet been made, and insofar as the appellant and his attorney believe implicit positive credibility findings have been made, the Board here notes that these may be revisited in a future decision. 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The appellant contends that he developed an acquired psychiatric disorder while in active service in the United States Army which was separate and distinguishable from his diagnosed personality disorder. While the Board regrets further delay in a final adjudication of this matter, remand is necessary prior to adjudicating this claim. In its May 2021 remand, the Board specifically requested that the VA examiner address the issue of whether any currently diagnosed psychiatric disability was superimposed upon the previously diagnosed personality disorder. Failure to previously consider this issue was the specific reason for the January 2021 JMPR and remand of this claim by the Court of Appeals for Veterans Claims. In a lengthy August 2021 VA medical opinion, the opining clinician went to great lengths to describe the nature of the appellant's personality disorder, his current symptoms, and why the appellant's lay reports of symptoms should not be found credible. The examiner shared numerous examples of how the appellant had provided conflicting information which significantly undercut his credibility. The examiner also highlighted the results of the appellant's clinical and diagnostic testing, which showed symptom exaggeration and reflect a likely attempt by the appellant to deliberately resent himself in an unrealistically unfavorable light. However, the Board notes that this opinion did not address the specific issue raised by the January 2021 JMPR, mainly whether any acquired psychiatric diagnoses have been superimposed upon the personality disorder during the appellant's active service. As such, remand is necessary to correct this missing portion of the medical opinion and to ensure compliance with the Board's previous remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the Board notes that the opining clinician used some speculative and conflicting language which needs to be addressed in an addendum opinion. In the August 2021 opinion, the clinician stated that "[i]n some cases, disciplinary infractions during military service may be markers of undiagnosed mental illness. However, in this case... the behaviors resulting in disciplinary infractions might be, at least in part, manifestations of his personality disorders." The Board notes that this language is problematic, as it is too speculative to rely on one way or the other in deciding this claim. Later in the opinion, the examiner stated that the appellant's personality disorder was a "more likely and more compelling explanation" to account for the appellant's behavioral, emotional, legal, relationship, and substance related problems. This language seems to contradict the earlier statement, and as such, clarification is necessary. As such, an addendum opinion is necessary so that further explanation can be provided. Finally, as noted above, no determination on the appellant's credibility should be inferred from this remand. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from the clinician who conducted the July 2019 VA examination and provided the August 2021 VA medical opinion, if available. The entire claims folder, including a copy of this remand should be provided to the examiner. If the clinician responsible for these decisions is unavailable, the entire claims file should be forwarded to a suitably qualified VA examiner. If additional examination is indicated, it should be scheduled in accordance with applicable procedures and all indicated studies and diagnostic testing should be performed. The examiner should provide an answer to the following with supporting rationale: a) Did any of the appellant's diagnosed acquired psychiatric disorders at least as likely as not have their onset during his period of active service? Why or why not? The examiner should consider the appellant's lay reports of symptoms, although the Board notes that no determinations have been made in this remand regarding the appellant's credibility. If there are medical reasons to accept or reject any of the appellant's lay reports of symptoms, those should be addressed. b) Are any of the appellant's diagnosed acquired psychiatric conditions superimposed upon his diagnosed personality disorder? Why or why not? A disease or injury is superimposed upon a congenital condition or defect when the disease or injury remains distinct from the congenital condition or defect, such that both conditions are still evident and distinguishable from one another. The appellant has multiple acquired psychiatric diagnoses. The examiner should explain whether any of these are distinguishable in symptoms from his diagnosed personality disorder or whether their symptoms are part and parcel of his personality disorder, such that they are indistinguishable. c) If any acquired psychiatric condition is superimposed upon the appellant's diagnosed personality disorder, did that superimposition occur during active service or is it otherwise related to an event which occurred during active service? Why or why not? d) Does the appellant suffer from additional disability due to aggravation of his personality disorder beyond its natural progression, because of a superimposed acquired psychiatric condition? Why or why not? (Continued on the next page) e) Is the appellant's personality disorder more likely than not the cause of is in-service behavioral issues as suggested in the August 2021 addendum VA medical opinion? Why or why not? In providing the requested opinion, the clinician must consider the appellant's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the appellant's reported symptoms in service and thereafter represented the onset of any current acquired psychiatric disability, this should be noted. Stated another way, do the appellant's reports about his symptoms align with how any current acquired psychiatric disability is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.