Citation Nr: 21014639 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 12-23 798 DATE: March 15, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include anti-social personality disorder with secondary mood disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1982 to April 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2016, the Veteran testified before the undersigned. In June 2016 and July 2020, the Board remanded the matter for further development. The Veteran has, at varying times, claimed that service connection is warranted for a personality disorder, psychosis, generally a mental condition, bipolar disorder, and posttraumatic stress disorder (PTSD), to include as due to military sexual trauma. See June 1984, October 1990, April 1996, September 2003 VA Forms 21-526; April 2008 VA Form 21-4138, March 2012 VA Form 21-6789. During the appeal period, since April 25, 2008 or just prior to, the Veteran has been diagnosed with anxiety disorder with intermittent explosive disorder and anti-social personality disorder, anxiety disorder due to a general medical condition, bipolar disorder rule out personality disorder, bipolar disorder with personality disorder, bipolar syndrome, bipolar disorder, mental retardation, posttraumatic stress disorder (PTSD), mood disorder not otherwise specified (NOS), depression NOS, anxiety disorder, alcohol and marijuana dependence, antisocial personality disorder with mood disorder NOS. See September 2007, January 2008, February 2008, June 2008 private medical treatment records; July 2008, October 2010, November 2011 VA treatment records; and April 2012, October 2016 VA examination reports. Here, service connection cannot be granted for the Veteran’s personality disorder or for an intellectual disability, as they are not compensable disabilities for VA purposes. 38 C.F.R. §§ 3.303(c), 4.127. In this regard, the Board remanded this matter in June 2016 and requested that a VA examiner opine as to whether the Veteran’s diagnosed psychiatric disorders other than the personality disorder or intellectual disability clearly and unmistakably pre-existed his active duty service and, if so, cite the evidence that served as a basis for this finding. The Board notes that the Veteran’s December 1981 enlistment report of medical examination and December 1981 Report of Medical History are silent as to any psychological symptoms. See Service Treatment Records (STRs). In October 2016, a VA examiner diagnosed antisocial personality disorder with mood disorder secondary to the personality disorder. The October 2016 VA examiner opined that the Veteran exhibited no evidence of a psychosis, ruling 38 C.F.R. § 3.384 out for application. The October 2016 VA examiner reviewed the Veteran’s lay testimony and noted it was inconsistent or conflicting with other past statements and then opined that there was no possible way to confirm the presence of any mental disorders that may or may not have pre-existed the Veteran’s entry onto active duty. Thus, with respect to any diagnosed psychiatric disorders other than the personality disorder and intellectual disability, the presumption of soundness has not been rebutted. See 38 U.S.C. § 1111, 38 C.F.R. § 3.304(b). The October 2016 VA examiner failed to adequately address the other psychiatric disorders diagnosed within the appeal period as directed by the June 2016 Board remand and is inadequate in this regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). Accordingly, in July 2020 the Board remanded this matter for addendum opinion, drawing particular attention to the fact that the Veteran was diagnosed in service with an adjustment disorder in addition to his personality disorder. See August 1982 STRs. The Board also, as it has done above, reviewed the psychiatric disorders diagnosed within the appeal period. See July 2020 Board remand. In the remand instructions, the Board ordered a VA examiner to opine as to whether any of the diagnosed acquired psychiatric disorders either had their onset in service or were otherwise related to the Veteran’s active duty service, to include being super-imposed on the Veteran’s personality disorder, or whether the currently diagnosed psychiatric disorders represented a continuation of the in-service adjustment disorder. In July 2020, a VA examiner rendered a diagnosis of PTSD with unspecified personality disorder with anti-social traits and depression about his inability to establish and maintain relationships. The July 2020 examiner, when considering the Veteran’s reported stressor regarding military sexual trauma (MST), found the Veteran’s assertion lacked credibility and opined that the Veteran’s PTSD was less likely than not caused by the reported in-service stressor. In support of this opinion, the examiner conceded that while the documented in-service substance abuse may be considered a potential behavioral marker, the fact that it arose more than one year after his reported MST made it less likely than not that the substance abuse was a marker in this Veteran’s case. The examiner also noted the Veteran’s previous report of the death of fellow service-members in Beirut were the cause of his PTSD symptoms, regarding the veracity of the Veteran’s asserted stressors. The Veteran’s service records do not demonstrate service in Beirut or any foreign service. See STRs, Service Personnel Records (SPRs), DD Form 214. However, the July 2020 examiner failed to provide any medical rationale as to why substance abuse must occur closer in time to a military sexual assault in order to be considered credible. The examination is inadequate in this regard. The July 2020 VA examiner then opined that it was less likely than not that any acquired psychiatric disorder had its onset during active duty service. In contrast to this statement, the examiner also opined that the Veteran’s in-service diagnosis of adjustment disorder was due to his out-processing from active duty. The Veteran’s SPRs reflect he was discharged from active duty by reason of the diagnosed personality disorder. See April 1984 SPRs. In opining that the Veteran had no super-imposed psychiatric disorder on the personality disorder, the examiner concluded that as there was some evidence that the personality disorder pre-existed service, it could not have been subjected to a super-imposed injury. The Board notes the examiner’s opinion is logically inconsistent and not an accurate statement of the law. See Morris v. Shinseki, 678 F.3d 1346, 1356 (Fed. Cir. 2012) (the presumption of soundness is inapplicable to personality disorders); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (Where a defect is not noted at service entry, the presumption of soundness is not rebutted unless there is clear and unmistakable evidence that a disability pre-existed service and was not aggravated by service). As noted above, there is no clear and unmistakable evidence that any acquired psychiatric disorder other than the personality disorder pre-existed service and the presumption of soundness has not been rebutted. The examination is also inadequate in this regard. Additionally, the July 2020 examiner concluded that it was less likely than not that any acquired psychiatric disorder had its onset in service, but supported this opinion by finding that there was no diagnosis of bipolar disorder, anxiety disorder, depression, mood disorder, or adjustment disorder. The Board notes that during the appeal period the Veteran was diagnosed with bipolar disorder in January and June of 2008, he was diagnosed with depression and anxiety in September and October 2007 and again in July 2008. The Veteran was diagnosed with a mood disorder in July 2008, October 2010, November 2011, April 2012, and October 2016. A diagnosis at any time during or just prior to the Veteran’s April 2008 claim for service connection is sufficient to meet the criteria for a current diagnosis. See Shedden, supra; see also McLain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability exist[s] ). The examination is also inadequate in this regard. Critically, the July 2020 Board remand specifically asked the examiner to address whether these diagnoses were at least as likely as not due to active duty (to include as a progression of the in-service adjustment disorder), or if they were injuries super-imposed on the personality disorder, or if these diagnoses all refer to the same personality disorder condition while diagnosed differently over the years. The examiner failed to address any of these questions. The July 2020 examination is also inadequate in this regard. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran’s pertinent medical history). Accordingly, another addendum opinion must be obtained on remand. Any outstanding treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records, including but not limited to those at Villa Rosa Psychiatric Hospital. See June 2016 VA Form 21-4142. If any records are unavailable, notify the Veteran pursuant to 38C.F.R. §3.159(e). 3. Then, request an addendum opinion from the July 2020 VA examiner (if available) regarding the nature and etiology of any diagnosed psychiatric disorders OTHER than the diagnosed personality disorder. No additional examination of the Veteran is required unless the examiner deems it necessary. The examiner should review the entire claims file, including a copy of this remand, and comment that this review has been completed in the addendum opinion. The examiner is then asked to opine as to whether it is it at least as likely as not (a 50 percent probability or greater): (a.) that any acquired psychiatric disorder diagnosed since April 2008, even if resolved, to include anxiety disorder with intermittent explosive disorder, anxiety disorder due to a general medical condition, bipolar disorder, PTSD, mood disorder NOS, or depression NOS, had its onset during active duty service or is otherwise etiologically related to military service to include as a continuation of the in-service diagnosis of adjustment disorder (attributed by the July 2020 VA examiner as being caused by being discharged from service due to a personality disorder). 1. In addressing this question, if the examiner continues to opine that the Veteran’s substance abuse being separated from the asserted MST stressor by the passage of one year renders the asserted stressor incredible, please provide a medical rationale for the same. 2. If you conclude the other diagnoses that have been made over the years (anxiety disorder with intermittent explosive disorder, anxiety disorder due to a general medical condition, bipolar disorder, posttraumatic stress disorder (PTSD), mood disorder not otherwise specified (NOS), or depression NOS) all refer to the same personality disorder condition, please thoroughly explain why this is so. (b.) that the Veteran’s personality disorder was subject to a superimposed disease or injury during active duty service resulting in additional psychiatric disability? Please discuss the Veteran’s in-service diagnosis of adjustment disorder previously noted as being due to the Veteran’s discharge from active duty in the context of the reason the Veteran was discharged from active duty, to wit: the diagnosed personality disorder. Any medical opinion must include a complete rationale for all opinions expressed. 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. The examiner is also reminded that a diagnosis rendered at any time during the period on appeal (April 25, 2008 or just prior to) is sufficient to meet the criteria of a current diagnosis for service connection and cannot be dismissed with a conclusory opinion lacking medical rationale. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.