Citation Nr: 21012749 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 18-09 842 DATE: March 5, 2021 REMANDED The claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and/or depression, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1971 to September 1972. This appeal comes to the Board of Veterans’ Appeals (Board) from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office which denied the Veteran’s claim for service connection for a mental disorder. In February 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual teleconference hearing. A transcript of that hearing will be added to the claims file at a later date. The Board has recharacterized the issue on appeal to include all psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (explaining that the scope of a clam for service connection for a mental disability includes any mental disability that reasonably may be encompassed by the claimant’s description of the claim reported symptoms, and the other information of record.). The Veteran is seeking service connection for an acquired psychiatric disorder, to include PTSD and depression. He contends that during his active duty service, he was sexually assaulted, which led to the development of an acquired psychiatric disorder. It follows that his in-service drug abuse and behavioral problems were signs of sexual abuse. A review of the service treatment records (STRs) reflects that the Veteran self- reported drug abuse and requested discharge from service. Examination was conducted and an immature personality disorder was assessed as was drug abuse. He did not seek rehabilitation, only discharge, which was granted. At the hearing, the Veteran stated that he did not recall receiving notice in 2016 that it was requested that he schedule a VA examination. He testified that he was treated at VA approximately 2 years ago. Those records are not in the claim file. Based on the foregoing evidence, the Board finds that a VA examination is warranted and that treatment records should be updated. Finally, VA regulations provide that personality disorders are considered “defects,” not “diseases or injuries,” within the meaning of applicable legislation for VA disability compensation purposes and, therefore, cannot be service connected either directly or on the basis of aggravation. 38 C.F.R. § 3.303(c), 4.9, 4.127 (2020); see also Schedule for Rating Disabilities; Mental Disorders, 61 Fed. Reg. 52,695 (Oct. 8, 1996). Defects are defined as “structural or inherent abnormalities or conditions which are more or less stationary in nature.” VAOPGCPREC 82-1990 (July 18, 1990). Congenital or developmental “defects,” such as personality disorders, automatically rebut the presumption of soundness and are considered to have preexisted service. 38 C.F.R. § 3.303(c) (2020); 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); see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (holding that the presumption of soundness does not apply to congenital defects). However, 38 C.F.R. § 4.127 (2020) provides that disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected. See also VAOPGCPREC 82-1990 (July 18, 1990) (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, while 38 C.F.R. § 3.303(c), 4.9, 4.127 (2020) prohibits any grant of service connection for a personality disorder, even if aggravated in service, any diagnosed psychiatric disorder, may provide a basis for service connection if the evidence demonstrates a psychiatric disorder was superimposed upon his diagnosed personality disorder. Based on the foregoing, in addition to a medical opinion on direct service connection for a psychiatric disorder, to include PTSD and/or depression, an opinion must be obtained regarding whether any diagnosed psychiatric disorder was superimposed on the Veteran’s preexisting personality disorder. The matter is REMANDED for the following action: 1. Obtain all updated relevant treatment records (private and VA) and associate them with the claim file. 2. Once the above development has been completed, arrange for the Veteran to be afforded a VA examination by a psychiatrist or psychologist to determine the nature and likely etiology of any acquired psychiatric disorder, to include PTSD and/or depression. The Veteran’s electronic claims file (to include this decision) must be reviewed by the examiner in conjunction with the examination. Psychological testing should be conducted with a view toward determining whether the Veteran in fact meets the criteria for a diagnosis of PTSD. However, the examiner should also identify all current psychiatric disabilities diagnosed during the examination. The examiner should review the historical records for evidence that might reflect that the claimed sexual assault incident actually occurred during military service. In performing such review, the examiner must clearly identify the particular records which are felt to provide corroboration of the incident, and must give an adequate rationale for why it is felt that such records establish that the claimed sexual targeting incident actually occurred during military service. The examiner should review the psychological test results, examine the Veteran, and provide an opinion as to whether the Veteran has symptomatology that meets the diagnostic criteria for PTSD. If PTSD is diagnosed, the examiner must identify the specific stressor(s) underlying any PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran’s stressors and must specifically address whether the identified stressors are adequate to support a diagnosis of PTSD; and whether his symptoms are related to the identified stressors. In addition to an opinion regarding PTSD, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any other current psychiatric disorder(s) had its (their) clinical onset during active service or is related to any in-service disease, event, or injury. In addressing the foregoing requests, the examiner should also discuss specifically whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s personality disorder was subject to any diagnosed superimposed psychiatric disorder resulting in additional disability. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 3. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. Undertake any additional development indicated by the results of the development requested above and readjudicate the claim. If denied, issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.