Citation Nr: 21006692 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 09-10 334 DATE: February 4, 2021 ORDER Entitlement to service connection for a psychiatric disorder is denied. FINDING OF FACT The preponderance of the evidence of record does not reflect that the Veteran has an acquired psychiatric disorder which was incurred in, aggravated by, or otherwise related to his active duty service; a mental disorder superimposed upon intellectual disability is not shown. CONCLUSION OF LAW The criteria for entitlement to service connection for a psychiatric disorder are not met. 38 U.S.C. §§ 1111, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a)-(c), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from March 1978 to August 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in August 2007. The Board remanded the case to the AOJ in October 2012, July 2013, and September 2015. In a July 2017 decision, the Board denied entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include paranoid schizophrenia, bipolar disorder, and anxiety disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2018, pursuant to a Joint Motion for Remand, the Court vacated the July 2017 decision and remanded the matter to the Board for action consistent with the Joint Motion. As outlined in the June 2018 Joint Motion for Remand, a May 2016 VA addendum opinion did not appear to have considered a September 1978 VA Medical Certificate and History, which reflects that the Veteran reported nervousness and palpitations since service, without hallucinations; and was diagnosed with anxiety. The Board remanded the case to the AOJ in March 2019, March 2020, and July 2020. Entitlement to service connection for an acquired psychiatric disorder The Veteran seeks service connection for a psychiatric disorder, which he asserts is related to service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of the following: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board has carefully reviewed the evidence of record and finds that the Veteran’s current disability, a diagnosed intellectual disability, was not aggravated or subject to a superimposed injury in service. See 38 U.S.C. §§ 1111, 1132; 38 C.F.R. §§ 3.303(c), 4.9; 38 C.F.R. § 3.304(b); see also Quirin v. Shinseki, 22 Vet. App. 390, 396-397 (2009); VAOPGCPREC 82-90; VAOPGCPREC 67-90. Intellectual disability and personality disorders are not diseases or injuries for compensation purposes, and, except as provided in 38 C.F.R. § 3.310(a), disability resulting from them may not be service connected. Personality disorders, which are characterized by developmental defects or pathological trends in the personality structure, manifested by a lifelong pattern of action of behavior, and shown to have existed prior to service, are preexisting congenital disorders and are not “diseases” for VA purposes. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; O’Bryan v. McDonald, 771 F.3d 1376, 1380-81 (Fed. Cir. 2014) (holding that intellectual developmental and personality disorders are excluded as injuries or diseases for compensation purposes under 38 C.F.R. § 3.303(c) and noting that a veteran with such disorders is not entitled to the presumption of soundness under 38 U.S.C. § 1111 and 38 C.F.R. § 3.304(b)). However, disability resulting from a mental disorder that is superimposed upon intellectual disability (intellectual developmental disorder) or a personality disorder may be service connected. 38 C.F.R. § 4.127; VAOPGCPREC 82-90. Disability resulting from substance abuse generally cannot be service connected because it is willful misconduct. 38 U.S.C. § 105(a); 38 C.F.R. §§ 3.1(m), 3.303(c)(3) and (d); VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). An exception to this general rule states that service connection may be awarded for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Thus, service connection may not be granted for substance abuse on the basis of in-service incurrence or aggravation; secondary service connection is available for substance abuse if such abuse is found to be secondary to (or a symptom of) a service connected disability. However, this exception does not apply here because, as detailed below, an acquired psychiatric disorder is not found to be of service origin. At the outset the Board notes that a current diagnosis of a psychiatric disorder has been met. Although there are several different diagnoses of record, the most recent VA examiners have had the benefit of review of the entire evidentiary record. In this regard, a November 2019 VA examiner found that there was clear and unmistakable evidence that the Veteran had a developmental, and not acquired, psychiatric disorder that preexisted his entrance into active service. The examiner noted that the developmental disorder included the diagnoses of personality disorders by multiple clinicians over time. The examiner diagnosed mild intellectual disability; severe opioid use disorder in early partial remission on maintenance therapy; and moderate cocaine use disorder in early partial remission. A July 2020 VA examination reflects a diagnosis of moderate intellectual disability, opiate use disorder with perceptual disturbances and cocaine use disorder with perceptual disturbances. See also March 2020 addendum opinion. The July 2020 VA examiner noted that the Veteran’s diagnosis of an intellectual disability was based upon the Veteran’s need for special education and the fact that he repeated both 9th grade and 10th grade prior to service. See also December 2010 VA examination (which reflects that the Veteran reported that he had a learning disability and had been slow in school). The examiner also opined that the Veteran’s polysubstance dependence existed prior to service. Further, the Board notes that the December 2010 VA examination, which reflected a diagnosis of manic bipolar schizoaffective disorder was not based upon current psychotic symptoms. The examiner noted that the Veteran’s cocaine and opiate dependence was in full remission, and the Veteran reported that he had last used drugs in 2006, and the Veteran reported that he last heard voices in approximately 2001. The July 2020 examiner noted that cocaine could induce paranoid ideation and transient psychotic symptoms, and a diagnosis of paranoid schizophrenia required the presence of both hallucinations and delusions in the absence of co-occurring substance use (cocaine), which the examiner noted that the Veteran had not experienced at any point in time. The examiner also noted that a February 1997 treatment record questioned the Veteran’s reliability, a diagnosis was not given because of the variance in his performance and reliability, and the treatment provider noted that the Veteran did not present with paranoid schizophrenia during the evaluation. See also May 2007, December 2015 and January 2018 VA treatment records. But see July 2011 VA treatment record and a June 2011 VA treatment provider’s statement. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). The Board notes that the Veteran’s intellectual disability and substance abuse were not noted prior to enlistment in the military. See February 1978 enlistment examination. However, as noted, the presumption of soundness does not apply to the Veteran’s intellectual disability and service connection can only be established if a psychiatric disability is found to have been superimposed on that developmental disorder in service. Moreover, although the Veteran’s substance abuse was not noted prior to enlistment in service, the Board finds that the Veteran’s substance abuse clearly and unmistakably existed prior to service. The Veteran has reported that prior to service he had sustained a head injury as a child, he had received psychiatric treatment, he had been in special education programs, and he had been delayed in school. The Veteran also reported that he had to repeat two years in high school and estimated that he read at the fourth-grade level. See July 2020 and November 2019 VA examinations. The Veteran has also reported that he used to sniff glue, gasoline, ammonia and cleaning liquids in his early teens. See March 2004 VA treatment record. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, a February 1978 military personnel record reflects that the Veteran did not have a high school diploma or a GED equivalency, and although the Veteran had completed 11 years of formal education, he had accumulated only 7 ½ credits. Notably, at enlistment the Veteran reported that he had been arrested for disorderly conduct and battery prior to service, and he had never been involved in the use, purchase, possession or sale of marijuana. However, subsequent police reports from a local police department and the Federal Bureau of Investigation (FBI), revealed that the Veteran had been repeatedly arrested prior to service, including for possession of marijuana, and he also had outstanding warrants for his arrests that were currently pending. See February 1978 application for enlistment; an undated local police report; and an April 1978 FBI report. As noted, VA examiners have opined that the Veteran’s intellectual disability (by definition) and substance abuse clearly and unmistakably existed prior to service. See July 2020 and November 2019 VA examinations. The Board also finds that VA opinions in December 2010, September 2013 and May 2016 also support a finding that the Veteran had both an intellectual disability and a substance abuse disorder prior to service. The VA examiners in December 2010, September 2013, May 2016, November 2019 and July 2020 all agree that the symptoms that the Veteran reported prior to service, were related to what the July 2020 and November 2019 VA examiners later determined were due to an intellectual disability. Thus, as noted, service connection is warranted only if there is evidence of additional disability due to aggravation during service of the congenital or developmental defect by superimposed disease or injury. In order to establish service connection, the evidence must show that there was a superimposed disability in service that resulted in a current acquired psychiatric disorder. On this point, the most probative evidence is clear that the Veteran does not have such a current psychiatric disorder. June 1978 service treatment records reflect that the Veteran complained of a nervous condition. A treatment provider noted that the Veteran was undergoing extreme anxiety due to his possible discharge from service due to his police records prior to service. A September 1978 VA treatment record reflects a diagnosis of anxiety; and the treatment provider noted that the Veteran complained about nervousness and palpitations since service with no hallucinations, as well as a pain behind his left knee, abdominal pain, and an upset stomach. The July 2020 VA examiner opined that per the September 1978 VA treatment record, the Veteran developed situational anxiety during service, upon discovering that he had been subject to an administrative discharge for concealing his legal system history. The examiner opined that the Veteran’s situational anxiety was a normal reaction and was not an anxiety disorder. See also May 2016, September 2013, March 2013, December 2010 VA examinations. The July 2020 VA examination combined with the other evidence of record including the service treatment records, military personnel records, VA treatment records, private treatment records, Social Security Administration records and lay evidence, establish that the Veteran’s intellectual disability was not aggravated in service in that the Veteran did not have an actual anxiety disorder in service, but rather situational anxiety related to his pending administrative discharge. Further, the July 2020 examiner noted that the Veteran had been a long time substance abuser and had low intellectual functioning that exacerbated his intellectual disability which was very evident from review of the Veteran’s medical records and service records. The examiner noted that the Veteran had had symptoms of anxiety but had never had a diagnosis of anxiety disorder that was unrelated to this substance abuse; his substance abuse had been longstanding since his teen years, had involved a multitude of illicit drugs and inhalants and was unrelated to his military service. The examiner further found that the diagnosis of paranoid schizophrenia requires presence of both hallucinations and delusions in the absence of co-occurring substance use (cocaine), and that the Veteran did not experience these at any point in time. The examiner concluded that based on a reasonable degree of medical certainty, it is not likely that the Veteran developed paranoid schizophrenia and/or bipolar disorder and/or an anxiety disorder during his military service nor was there aggravation of any preexisting disorder. Again, the Board acknowledges that disability resulting from a psychiatric disorder that is superimposed upon a personality or intellectual disorder may be service connected. See 38 C.F.R. § 4.27. However, as stated above, the Veteran does not have a diagnosis of a psychiatric disorder, outside of his diagnosed intellectual disorder that is related to his active service. As such, the Veteran’s intellectual disorder would not be considered a disability for VA compensation purposes. Accordingly, absent any current diagnosis of an acquired psychiatric disability in accordance with VA standards, an award of service connection for a psychiatric disorder is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Further, as to the Veteran’s substantive abuse disorder, the Veteran must establish service connection for a substance abuse disorder on a secondary basis. To the extent the Veteran argues his substance abuse disorder is caused or aggravated by service, such service connection is precluded. Nevertheless, the record establishes a clear history of substance abuse prior to service. Therefore, it cannot be said the Veteran’s substance abuse is related to service.   The Board notes that under the provisions of 38 U.S.C. § 5107(b), the benefit of the doubt is to be resolved in the claimant’s favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Johnson 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.