Citation Nr: 21009912 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-28 904 DATE: February 23, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, variably diagnosed as intermittent explosive disorder, mood disorder, anxiety disorder, and personality disorder, is denied. REMANDED Entitlement to service connection for a left knee condition is remanded. FINDING OF FACT The preponderance of the evidence reflects that the Veteran’s acquired psychiatric disorder is not etiologically related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, variable diagnosed as intermittent explosive disorder, mood disorder, anxiety disorder, and personality disorder, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1976 to May 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of history, the Veteran appealed these claims to the Board following the rating decision on appeal, and in a September 2019 Board decision, entitlement to service connection for an acquired psychiatric disorder was remanded to the Agency of Original Jurisdiction (AOJ) and entitlement to service connection for a left knee condition was denied. The Veteran then appealed the left knee claim to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Veteran and VA filed a Joint Motion for Partial Remand (JMPR) wherein the parties agreed to vacate the September 2019 Board decision as to the issue of entitlement to service connection for a left knee disability. An order memorializing the JMPR was issued by the Court in September 2020, and this appeal was presently returned to the Board for review. 1. Entitlement to service connection for an acquired psychiatric disorder, variable diagnosed as intermittent explosive disorder, mood disorder, anxiety disorder, and personality disorder, is denied. The Veteran contends that his acquired psychiatric disorder, to include intermittent explosive disorder, mood disorder, anxiety disorder, and personality disorder, is related to his active military service. Specifically, the Veteran asserts that he began experiencing psychiatric symptoms related to his current psychiatric disorder while he was in the service, and that it has persisted since. Additionally, the Veteran asserts that while on active duty, he did not receive extensive mental health treatment such that would determine the extent of his psychiatric issues, and as such, his current disabilities could have existed and persisted since his active duty service. See e.g., May 2014 notice of disagreement. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt shall be given to the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A private psychiatric evaluation submitted by the Veteran reflects current diagnoses such as mood disorder not otherwise specified, intermittent explosive disorder, anxiety disorder, and personality disorder not otherwise specified (mixed). See April 2014 private treatment record (labeled as Third-Party Correspondence). As such, the first element of service connection, a current disability, has been met. The Veteran’s service treatment records (STRs) refer to instances where the Veteran may have been exhibiting symptoms of his acquired psychiatric disorder. While his enlistment examination is silent for any complaints, treatment, or diagnoses, during his time on active duty, there are multiple records of non-judicial punishment by his commanding officer for offenses such as disrespectful language to a superior petty officer. See e.g., August 4, 1977 administrative remarks; April 20, 1978 administrative remarks. Following the April 1978 incident, the Veteran was seen in sick bay where the treatment provider noted that the Veteran “communicated threats to officers and petty officers in the last 24 hours. He is intelligent but appears to have an explosive personality. He has stated that he will commit illegal acts to achieve his goal of a discharge. He is potentially dangerous to the ship’s crew and request that he be evaluated for psychiatric or personality disorders. Administratively processed for discharge.” See April 21, 1978 sick log note. The Veteran was ultimately diagnosed with “passive aggressive personality” and referred for a psychiatric evaluation to exclude explosive personality disorder. However, his discharge examination reflected no diagnoses or references to psychiatric complaints. See May 16, 1978 separation examination, report of medical examination. Resolving reasonable doubt in favor of the Veteran, the Board finds that based on the above, the second element of service connection, an in-service incurrence of a disease or disorder, has been met. Turning to whether the Veteran’s acquired psychiatric disorder is etiologically related to his active duty service, the private psychiatric evaluation provided by the Veteran from April 2014 did not contain any nexus opinion or evidence by the evaluator that the Veteran’s current psychiatric disorder was related to his active military service. As a result, the Board, in its September 2019 remand, found that as no VA medical opinion had been obtained regarding the Veteran’s psychiatric disorder claim, the Veteran should be afforded a VA examination in accordance with McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As a result, in accordance with the September 2019 Board remand directives, the Veteran was scheduled for a VA examination to determine the nature and etiology of his acquired psychiatric disorder. A February 2020 examination request shows that the AOJ scheduled the Veteran for this VA examination. A subsequent March 2020 examination request indicated that the Veteran failed to report for his scheduled VA examination. There is no evidence that notice of the scheduled VA examination was not received by the Veteran. None of the correspondence sent to the Veteran either before or after the scheduled examination has been returned as undeliverable, indicating that the current address of record is correct. See Ashley v. Derwinski, 2 Vet. App. 62 (1992); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). To date, neither the Veteran nor his representative have provided good cause for why the Veteran failed to attend the scheduled VA examination. VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must cooperate in VA's efforts to obtain evidence needed to adjudicate his claim, including attending any scheduled VA examinations, and promptly communicating with VA if he cannot attend a scheduled VA examination. Here, the Veteran did not do so. Further, while VA treatment records reflect continued treatment for his acquired psychiatric disorder, there is no evidence within the VA treatment records that indicate that his acquired psychiatric disorder is attributed to his active military service. There is no competent medical evidence of record that the Veteran’s acquired psychiatric disorder is related to the Veteran's active service. The Veteran himself is not competent to give opinions regarding the casual link, or nexus, between his psychiatric disorder and his military service; such a determination requires medical expertise or knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To the extent that the Veteran has an in-service diagnosis that is similar to one of his current diagnoses, the Board points out that a personality disorder is not a disability for VA compensation purposes. 38 C.F.R. § 3.303(c). As such, the Board finds that the preponderance of the evidence weighs against entitlement to service connection. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. 38 C.F.R. § 3.102 (2015), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Therefore, service connection for an acquired psychiatric disorder, to include intermittent explosive disorder, mood disorder, anxiety disorder, and personality disorder, is denied. REASONS FOR REMAND 2. Entitlement to service connection for a left knee condition is remanded. The Veteran contends that his current left knee condition is related to an injury that occurred during his active duty military service. Specifically, the Veteran asserts that he fell off the gang plank one night during service and hit his knee on the aft scuttle, injuring it, and that his left knee disability began then, manifested by pain, and has persisted since this injury. See e.g., October 2013 statement in support of claim (VA 21-4138). The September 2020 Court JMPR found that the Board erred in its September 2019 decision by not providing an adequate statement of reasons and bases for finding that the Veteran’s assertions of an in-service knee injury not credible. Further, the Court found that the Board erred in failing to ensure that VA satisfied its duty to assist requirements by failing to obtain the Veteran’s outstanding medical records from a federal department or agency. As a result, the Court indicated that remand to the Board was necessary to attempt to obtain the outstanding federal records, i.e., VA treatment records. Additionally, the Board finds that in accordance with the Court’s order, a remand for a VA examination is necessary as the Veteran has not yet been afforded an examination with respect to this claim for service connection for a left knee disability. In finding that the Veteran’s statements as to his in-service left knee injury are credible, the McLendon elements necessitating a VA examination have been met, and a remand is necessary to obtain one. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Attempt to obtain treatment records from the San Diego Naval Hospital from 1978. If those records are unavailable, provide the Veteran with notice of the same and follow any other administrative steps necessary to satisfy the duty to assist with regard to these records. 2. Obtain any outstanding VA treatment records, to include treatment records from the Durham VA Medical Center and the Broward County VAOPC in Sunrise, Florida. 3. Thereafter, schedule the Veteran for a VA examination with an appropriate clinician regarding the Veteran's left knee disability and its etiology. The examiner is asked to review the record and provide the following opinions: (a.) Is it as likely as not that the Veteran's left knee condition is related to an in-service injury, event, or disease, to include the reported onset of right knee pain in service? Attention is invited to the statement in support of claim submitted by the Veteran detailing an injury that occurred in service. See VBMS, document labeled VA 21-4138 Statement in Support of Claim, receipt date 10/25/2013, pages 1-2; see also document labeled NOD, receipt date 05/16/2014 page 2 of 2. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service. He is competent to describe the pain he experienced in service, even if he did not seek treatment for it. The examiner is asked to explain the reasons behind any opinions and conclusions expressed. The examiner is reminded that the term "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 expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If an opinion cannot be provided without resort to mere speculation, the examiner should explain why that is so. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.