Citation Nr: 21073914 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 19-31 525 DATE: December 13, 2021 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), to include an adjustment disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 2008 to March 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2016 (paranoia) and August 2016 (right shoulder) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim of entitlement to service connection for paranoid personality disorder has been recharacterized to include consideration of all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Of note, the claim for PTSD has previously been denied by the Board in an April 2020 decision, and thus is not part of this appeal. Service Connection Right Shoulder The Veteran claims service connection is warranted for a right shoulder disability. His service treatment records show a left shoulder sprain on his problem list in March 2009; however there is no indication of right shoulder injury or symptoms in service. However, in June 2014, he reported initially injuring his shoulder while at Fort Gordon and that it has significantly his life ever since. The Veteran's former representative further clarified this when submitting the March 2017 Notice of Disagreement (NOD). It was noted that the Veteran injured his shoulder during military training at Fort Gordon in 2008 while doing backward pushups. He felt what he described as a tear in his shoulder. It was suggested that he was put on a profile and that he suffered through it during the rest of his service. The Veteran's service personnel records were received by the RO in May 2016, and they do not include a right shoulder profile. The available service treatment records also do not include a copy of a profile related to the right shoulder. To the extent the Veteran is suggesting there are missing service personnel records, to include a right shoulder profile, the RO should undertake the development to assist the Veteran in finding these records. 38 C.F.R. § 3.159(c)(2), (e). Following service, in March 2014, VA clinical records show an indication of crepitus. painful motion and a painful catch in the right shoulder. The Veteran contends that this is a current right shoulder disability that is causally connected to his active service. As it is unclear whether the Veteran's right shoulder disability has progressed to arthritis, or any other shoulder disability, and if any shoulder disability is related to his active service, the Veteran should be afforded a VA examination. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Additionally, the Veteran has submitted an article on post-traumatic arthritis, which should be addressed on remand by the VA examiner. Finally, the Board notes that the Veteran's complete service treatment records (STRs) were determined to be unavailable. An additional attempt to locate the STRs should be made, and the RO should properly notify the Veteran of any records that cannot be found. 38 C.F.R. § 3.159(c)(2), (e). Also, any outstanding, non-duplicative post-service treatment records should be obtained and associatd with the claims file on remand. 38 C.F.R. § 3.159(c)(2), (3). Service Connection Acquired Psychiatric Disorder, Other Than PTSD The Veteran asserts that his current psychiatric disorder either had its onset during service, to include as being due to a stressful event, or is otherwise related to his active duty service. He specifically referenced an in-service vehicle accident where he experienced head trauma, noting his mental health problems stem from that, and another in-service incident where he asserts that he was falsely accused of assault, which also serves as a catalyst for his psychiatric conditions. During the appeal period the Veteran was diagnosed with an adjustment disorder; substance abuse; unspecified personality disorder; rule out, paranoid personality disorder; rule out, bipolar; and rule out, narcissistic personality disorder. See April 2016 VA; June 2016 VA treatment note; June 2016 VA examination. The records indicates that the Veteran was diagnosed in service with paranoid personality disorder and a personality disorder with narcissistic, immature, and impulsive features. However, as a matter of law, VA cannot grant service connection for a personality disorder, or for aggravation of a personality disorder occurring during military service. Morris v. Shinseki, 678 F.3d 1346, 1356 (Fed. Cir. 2012); see also 38 C.F.R. §§ 3.303(c); 3.310(a), 4.127. Personality disorders are considered congenital or developmental defects for which service connection cannot be granted because they are not diseases or injuries within the meaning of applicable legislation. See Conley v. Peake, 543 F.3d 1301, 1305 (Fed. Cir. 2008). See also 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). VA may grant service connection when another mental disorder is superimposed upon a personality disorder. 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. Superimposed is not defined in the regulations, but a common definition is that one thing is placed over another, typically so that both are still evident. See also Carpenter v. Brown, 8 Vet. App. 240 (1995) (personality disorders are not considered disabilities for rating purposes, but properly diagnosed superimposed psychotic disorders developing after enlistment, are to be considered disabilities rated analogous to schizophrenia). However, the Board cannot make a medical determination as to whether the in-service diagnoses of personality disorders rendered in 2009 and 2010 qualify as a personality disorder as contemplated under VA regulations, or if in the alternative, it represents the onset of the Veteran's diagnosed adjustment disorder and potential bipolar disorder. Accordingly, the Board finds the low bar of McLendon has been met and a VA examination is warranted on remand. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Attempt to locate the Veteran's complete STRs and SPRs. If unavailable, notify him pursuant to 38 C.F.R. § 3.159(e). In particular, the Veteran should be provided an opportunity to submit a copy of any records he has in his possession, to include the profile he referred to related to his shoulder claim. 2. Obtain all outstanding, non-duplicative VA treatment records, and, with any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of his right shoulder disability. The entire claims file should be made available to the examiner. All findings should be reported in detail. After a review of the claims file, the examiner is requested to: (a.) Diagnose all right shoulder disabilities present since June 2014. (b.) For each disability so diagnosed, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset in service or is otherwise related to service? In addressing this question please discuss: (1) the Veteran's report that he suffered a right shoulder injury during his training while doing push-ups at Fort Gordon (See June 2014 VA Form 21-4138; March 2017 NOD; November 2019 Third Party Correspondence); (2) the Veteran's statement that he reinjures his shoulder whenever he does simple tasks such as moving boxes and it takes a day or longer to recover (See March 2017 NOD); and (3) the Veteran's assertion that his right shoulder injury has been ongoing and has negatively impacted his overall quality of life (See June 2014 VA Form 21-4138; March 2017 NOD). In addressing this question, for the purpose of the examination and opinion, the examiner must assume items (b)(1) - (b)(3) as true, despite any absence of "objective documentation." (c.) Please state whether a nexus between the Veteran's right shoulder disability and service is medically consistent with the information reported by the Veteran in items (b)(1) - (b)(3) above. (d.) Please address the article submitted in November 2019 regarding post-traumatic arthritis. (e.) Please also address his former counsel's statement on behalf of the Veteran that the "push-up injury was the cause of his current condition due to a subacute injury to his right shoulder" and that "research shows that injuries which may be viewed as 'trivial' at the time of the occurrence can lead to degenerative changes years later." See November 2019 Third Party Correspondence. (f.) For diagnosed arthritis, is it at least as likely as not that this condition manifested within a year of service discharge, or by March 2011? 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed psychiatric disorders (other than PTSD) from December 2015, even if resolved. The entire claims file must be made available to and reviewed by the examiner, to include a copy of this remand. Based on the examination and review of the record, the examiner should offer an opinion as to the following: (a.) Please diagnose any psychiatric disorders from December 2015, even if resolved. If an adjustment disorder and bipolar disorder are not diagnosed, please reconcile your findings with the April 2016 VA treatment note. (b.) Provide an opinion as to whether the Veteran has a personality disorder. If the examiner concludes the other diagnoses that have been made over the years (adjustment disorder and bipolar disorder) all refer to the same paranoid personality disorder that was first documented in service, please thoroughly explain why this is so. (c.) Is it at least as likely as not that any psychiatric disorders diagnosed pursuant to part (a) above were superimposed upon his personality disorder during service? In addressing this question, the examiner should discuss the Veteran's in-service incidents of head trauma and false accusation of assault. (d.) For each disability other than personality disorder diagnosed in part (a) above, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset during active service or is otherwise etiologically related to his active service. (e.) If the criteria for a diagnosis of a psychosis (brief psychotic disorder; delusional disorder; psychotic disorder due to another medical condition; other specified schizophrenia spectrum and other psychotic disorder; schizoaffective disorder; schizophrenia; schizophreniform disorder; or substance/medication-induced psychotic disorder) are met, please state, to the best of your ability, whether the prodromal period for such disorder as likely as not had its onset during the Veteran's period of active service. (f.) If psychosis is diagnosed, please opine as to whether it is at least as likely as not (50 percent probability or greater) that such disorder manifested within one year of the Veteran's separation from service (e.g. by March 2011). All requested medical opinions must include a complete rationale. Conclusory opinions without supporting rationale citing to evidence will be considered inadequate. The examiner is reminded that the term at least as likely as not, does not mean within the realm of medical possibility, but rather that the evidence of record is so evenly divided that, in the examiner's opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.