Citation Nr: 21015315 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-20 987A DATE: March 17, 2021 REMAND Entitlement to service connection for an acquired psychiatric disability, to include schizophrenia. REASONS FOR REMAND The Veteran served on active duty from November 1975 to October 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This claim previously was addressed by the Board. The claim then before the Board was one to reopen the claim for entitlement to service connection for an acquired psychiatric condition, to include schizophrenia. The Board found that no new and material evidence had been submitted since the most recent final denial to warrant reopening. Furthermore, the Board found that a February 1995 rating decision denying service connection for a psychiatric disability became final when the Veteran withdrew his appeal in February 1997. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC), which vacated the denial in a September 2019 order granting a joint motion for remand (JMR). The appeal is therefore again before the Board. The JMR In August 1994, the Veteran filed a claim for service connection for a personality disorder, which VA denied in a February 1995 rating decision. VA found that the Veteran’s personality disorder is a constitutional or developmental abnormality, which does not qualify for service connection, and that there otherwise was no evidence of an in-service psychiatric condition. The Veteran timely appealed in a March 1995 notice of disagreement. VA issued the requisite statement of the case in July 1995, and the Veteran responded with a timely VA Form 9 to perfect his appeal to the Board. In a March 1996 correspondence, during the pendency of the personality disorder claim, the Veteran informed VA that he also would like to file a claim for a “psychiatric condition” and that, to the best of his knowledge, he had “some type of mental breakdown while in the Army.” Roughly ten days later, VA sent to the Veteran a letter informing him that it received his request for a claim for a psychiatric condition, but that, because the personality disorder claim currently was pending, it would not take further action on the other psychiatric claim. In February 1997, the Veteran wrote to VA, asking to withdraw his appeal for “personality disorder, to become effective immediately.” He also stated that he wished to re-open his claim for schizophrenic disorders, as he had medical documentation of such. It should be noted that the Veteran previously never filed a claim specifically for schizophrenia. Two weeks later, the Veteran reiterated his intentions when he wrote into VA that he was satisfied and wished to withdraw his appeal. VA never took further action on the personality disorder claim, and the appeal was never transferred to the Board. VA denied, in a March 1997 rating decision, the Veteran’s claim for schizophrenia based on a finding that there was neither evidence of schizophrenia during service nor within a year from discharge. That claim again was denied in a December 1997 decision, citing a lack of new and material evidence. The Veteran did not appeal that determination, and the Veteran did not refile for schizophrenia until the current, pending claim in February 2010. The JMR instructs the Board previously erred when it conclusively found, without an adequate statement of reasons or bases, that the Veteran withdrew his personality disorder appeal. Because that claim was under the jurisdiction of the Board, the JMR instructs, only it had the ability to dismiss that appeal. Failure of the Board in the May 2018 decision to assess whether dismissal comported with the regulations in affect in 1997 constituted error, and, because the Board has not acted on this claim since, the JMR states that it continues to remain pending. The JMR further instructs that the Board now also must address whether this issue has any bearing on the fact that the schizophrenia claim now has been characterized as one to reopen, requiring new and material evidence. For the reasons discussed below, the Board finds that the Veteran’s claim was not properly withdrawn and dismissed, leaving it pending before the Board to this day. The Board also finds that the Veteran’s personality disorder claim reasonably encompassed a claim for any psychiatric disability. Thus, the Board will not require the submission of new and material evidence, and the issue before the Board is characterized as it appears on this decision’s first page. The Board finds that VA failed to ensure compliance with the regulatory requirements for written withdrawal of a claim in 1997. At that time, the regulations stated that the AOJ may not withdraw a notice of disagreement or substantive appeal after filing of either or both. 38 C.F.R. § 20.204(c) (1996). From that plain and unambiguous language, it is clear that the AOJ had no authority to stop processing the Veteran’s claim for a personality disorder; rather, it had no choice but to forward that appeal to the Board, which then would have taken the appropriate action. Because the AOJ divested the Board of the opportunity to adjudicate the Veteran’s August 1994 personality disorder claim, the Board finds that this appeal has remained pending since. The Board further finds that the schizophrenia claim reasonably was encompassed within the personality disorder claim. Thus, the ultimate, pending claim is one for an acquired psychiatric condition, to include schizophrenia. The legal basis for such a finding is discussed below. In the February 1995 rating decision, in adjudicating the personality disorder claim VA specifically found that there was no evidence of a chronic acquired psychiatric disorder in service. While the personality disorder appeal was pending, the Veteran specifically claimed service connection for a “psychiatric condition.” VA responded with a March 1996 letter stating that such a claim was already on appeal and dismissing the additional claim. For these reasons, the Board finds that VA was treating the two claims as one. Furthermore, the Veteran’s March 1996 claim indicating that he had some type of mental breakdown during service must be construed broadly to encompass all psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As such, the Board will address the merits of a broadly construed claim of service connection for an acquired psychiatric disability. Substantive Claim for Service Connection While service connection may be granted for an additional disability superimposed on top of a personality disorder, personality disorders themselves are not considered diseases for which service connection may be granted. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; VAOPGCPREC 82-90 (July 18, 1990). VA’s duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained, there are four factors that must be met: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Service treatment records (STRs) contain an October 1973 enlistment examination, which did not note any psychiatric conditions upon entry into service. In December 1978, the Veteran underwent a mental health assessment because he injured his one-year-old stepson, who was removed from the home. The examiner noted that, since his childhood years, the Veteran has had difficult managing his temper, as he would throw bicycles at people when upset. The Veteran ultimately was placed into an assertiveness group. A January 1979 note indicates that the Veteran attend assertiveness group training. By February 15, 1979, the Veteran had attended only two classes, showed no further interest in attending more or motivation to improve, and subsequently ceased attending. The examiner running the assertiveness sessions noted that no significant mental illness was found and that the Veteran “has no motivation to improve his impulsivity.” By September 1979, it was recommended that the Veteran be discharged due to a personality disorder. The associated mental status evaluation indicates that the Veteran did not have a significant mental illness but did have personality disorder—explosive type. The examiner had the following to say: [Service member] has been experiencing more stress than what he can usually handle without exhibiting signs of maladjustment. Now he is getting close to explode; his behavior has become passive-aggressive type; he has entertained suicidal ideation; and he was not holding any hope until he started talking about wanting to be discharged from the Army. Potential for improvement is very poor. On his separation report of medical history, the Veteran noted that he experienced depression and excessive worry. Post-service VA medical center (VAMC) records from September 1994 continued to show that the Veteran suffered from a personality disorder rather than a psychiatric condition. In an examination with Dr. A.V., a VA psychologist, the Veteran stated that he has been having problems since his discharge from service. According to the Veteran, the Army gave him the option of being committed to the hospital for two weeks or discharge, and he opted for discharge. Dr. A.V. noted that the Veteran reported a mood of 2/10, but Dr. A.V. believed that to be a gross exaggeration. The Veteran also reported sleeping too much, gaining twelve pounds in six weeks, having energy that waxes and wanes, feeling hopeless and helpless, and daily thoughts of suicide. Dr. A.V. ultimately concluded that no psychiatric condition was present and that the Veteran had a “probable personality disorder.” April 1997 VAMC records from Dr. R.A. noted that schizophreniform disorder could be ruled out and diagnosed the Veteran with schizotypal personality disorder. In September 1997 the Veteran continued having hallucinations and paranoia, and his medication was increased. It was not until March 1998 that the Veteran was given a diagnosis of schizophrenia by Dr. T.J., a VA psychiatrist. The treatment records since then, both private and VA, show that the Veteran has been treated for schizophrenia. In February 2021, the Veteran provided a private medical opinion by Dr. M.C. In essence, Dr. M.C. opines that the Veteran had a diagnosis of schizophrenia during service that has persisted into the present. Dr. M.C. also is of the opinion that, at the time of separation, the Veteran met the criteria for a brief psychotic disorder, and, at no time (before or after service), met the criteria for a personality disorder. In this case, the Board finds that an updated medical opinion is necessary to answer whether the Veteran’s current diagnosis of schizophrenia was superimposed onto his in-service personality disorder. Dr. M.C.’s private opinion alleges that the Veteran never had a personality disorder and that he was schizophrenic all along; however, that opinion is against the clear weight of the evidence, as multiple contemporaneous medical professionals opined that the Veteran had a personality disorder. Specifically, a December 1978 in-service examiner noted that the Veteran had childhood anger issues and recommended that he undergo the assertiveness classes; after two sessions, the Veteran no longer wished to attend, and the February 1979 examiner running those classes noted as such, stating that the Veteran had no mental illness. The September 1979 separation examiner stated that the Veteran had personality disorder—explosive type. Post service VAMC records form 1994 noted that the Veteran had a probable personality disorder, and, by 1997, the Veteran received a diagnosis of schizotypal personality disorder. It was not until 1998—roughly two decades after service—that the Veteran received an actual diagnosis of schizophrenia. The private opinion fails to address the five different medical professionals who contemporaneously observed and/or evaluated over the course of twenty years the Veteran and rendered diagnoses of a personality disorder. The evidence establishes that the Veteran currently suffers from schizophrenia; he was diagnosed in service with a personality disorder; the medical evidence indicates that the Veteran’s schizophrenia disorder may have been superimposed on top of his personality disorder. There is insufficient medical evidence to determine whether such a relationship is more likely than not, as no VA examiner or private medical provider has answered the question whether schizophrenia was superimposed on the Veteran’s in-service personality disorder. As noted above, Dr. M.C. opined that the diagnosis was schizophrenia all along but did not support this opinion with a rationale addressing contradictory evidence. Thus, remand is required to secure an adequate medical opinion. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Schedule the Veteran for a VA examination for his mental health disability. The claims file must be reviewed by the examiner. Following a review of the claims file and any clinical examination results, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or more) that the Veteran’s current diagnosis of schizophrenia was superimposed on top of his in-service diagnosed personality disorder. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above, and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, return the appeal to the Board. J. GALLAGHER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.