Citation Nr: 21020885 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 13-22 647 DATE: April 8, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder on a substitution basis is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) on a substitution basis is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran had an acquired psychiatric disorder that was etiologically related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder on a substitution basis have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served under honorable conditions with the United States Navy from August 1959 to September 1961. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This issue was previously remanded by the Board in July 2018 and September 2019 and has been returned for further adjudication. The Veteran passed away on June 7, 2015. The cause of death was listed as end-stage chronic obstructive pulmonary disease (COPD). The Veteran’s widow has been properly substituted as the appellant. In February 2021, the Veteran’s attorney requested an additional 90 days as the appellant was in the process of obtaining additional records. Subsequently additional records and an opinion were received. The Board hereby denies the motion for extension for lack of good cause. The Board in any event notes, as discussed below, that decision represents a full grant of the benefit sought as to the psychiatric disorder. As to the TDIU matter, that matter must be remanded in light of the grant of service connection. Issue 1: Entitlement to service connection for an acquired psychiatric disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). Personality disorders are not diseases or injuries within the meaning of the applicable legislation for VA compensation purposes. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127. VA regulations specifically prohibit service connection for such a congenital or developmental defect, unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (1990). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310 (a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The appellant contends that the Veteran during his lifetime had a psychiatric disorder that was due to service or secondary to his service-connected gastritis. The Veteran’s service treatment records reflect that he was hospitalized at Beaumont Army Medical Center in July 1961 with an admission diagnosis of schizophrenic reaction, catatonic type. He was transferred to the Naval Hospital at Oakland, California in August 1961. There was a report that he left the hospital without a pass or leave, and that he had allegedly stolen a car at knife point. Upon diagnosis and treatment, his diagnosis was revised to antisocial personality. The veteran was determined to be unsuitable for further service. After service, there is conflicting evidence as to the diagnosis of the Veteran’s psychiatric disorder. On VA examination in June 1962 the diagnosis was schizoid personality. Treatment records in August 2003 show depression. A VA examination was conducted in April 2004 that shows a diagnosis of PTSD. Treatment records in March 2012 show diagnoses to include major depressive disorder and prolonged PTSD. Treatment records in January 2013 show depression and anxiety. On the June 2013 VA examination report the diagnosis was personality disorder. In March 2021 the Appellant submitted a 1990 article from the Journal of Abnormal Psychology that shows depression can occur as a reaction to chronic pain. With regard to a nexus, there are both favorable and unfavorable opinions. As for the unfavorable opinions, during the February 2014 VA examination, the Veteran described an in-service incident in which he was dragged from his bed in the middle of the night and assaulted and threatened. The February 2014 VA examiner diagnosed the Veteran with personality disorder, and opined that the Veteran did not meet the criteria for diagnosis of PTSD or mood disorder due to medical condition, with major depressive features. The VA examiner explained that the Veteran’s symptoms, including those attributed to mood disorder or PTSD by other medical professionals, are more appropriately attributed to his personality disorder. The VA examiner further explained that the diagnoses of mood disorder and PTSD were not based on full consideration of the Veteran’s childhood history and in-service medical treatment. The VA examiner also opined that the Veteran’s prior diagnosis of PTSD during the pendency of the claim was not related to service because his claims of in-service stressors were not supported by the evidence. The examiner opined that the service-connected gastritis did not cause or aggravate the personality disorder. In an April 2019 VA opinion the examiner stated that based on the evidence regarding whether the service-connected gastritis caused or aggravated a mental health disorder or if the mental health disorder had its onset during service this had to do with a psychosomatic disorder viz-a-viz after service or a mental health diagnosis during service whose documentation was very ambiguous. The examiner stated that he lacked the training to render an opinion and deferred to a mental health specialist. On VA examination in December 2019, the examiner noted that records show the Veteran had a diagnosis of a psychiatric disorder to include major depressive disorder and PTSD. The examiner opined that the Veteran’s psychiatric disorder was not worsened by pain from gastritis, his emotional instability was not aggravated by service or his gastritis, and it is at least as likely as not that his depression and anxiety affected his ability to cope with COPD. The examiner noted that on the February 2014 VA examination it was concluded that the Veteran had a pre-existing personality disorder which was not aggravated beyond its natural progression by his military service. This personality disorder did not worsen his gastritis nor was it worsened by his gastritis. This examiner found the 2014 evaluation was the most thorough and accurate evaluation available in the medical records. In a June 2020 addendum opinion the examiner noted that on VA examination in February 2014 it was noted that the Veteran during the pendency of the claim had a diagnosis of PTSD however there was no evidence of an inservice stressor and his PTSD symptoms were better accounted for by his personality disorder, which preexisted service and was not aggravated beyond a natural progression by gastritis. The examiner opined that the Veteran’s psychiatric disorder was not worsened by pain from gastritis and that his emotional instability was not aggravated by his military service or his gastritis. As to whether his military service “caused” his emotional instability or whether his gastritis “caused” his claimed psychiatric disorder, it was clear that the Veteran suffered from a general personality disorder that pre-dated his military service and there was no medical evidence that gastritis caused this or any other mental health disorder. In an August 2020 VA opinion the examiner noted that on VA examination in February 2014 the Veteran was diagnosed with general personality disorder, which predated service and thus his gastritis and COPD did not cause the psychiatric disorder. The examiner noted that the February 2014 examiner opined that the Veteran’s personality disorder was not aggravated beyond its natural progress by gastritis or COPD. The examiner noted that treatment records for mental health do not refer to COPD or breathing issues. Thus it could not be stated with any degree of certainty that the Veteran’s psychiatric disorder was caused or aggravated by COPD. The August 2020 VA examiner opined that as the Veteran’s personality disorder predated service it could not have been caused by service. It was not aggravated by service as there were no events during service that would have aggravated the disorder beyond its natural progression. In an October 2020 VA opinion the examiner commented on an article that addressed the interactions between anxiety and depression that shows that in patients with acute exacerbation of COPD, depression is associated with increased mortality risk, longer hospitalization, persistent smoking, and poor physical and social functioning. However, the VA examiner explained that in terms of how this article related to whether the Veteran’s COPD caused or aggravated his mental health disability the evidence shows no link between his COPD and general personality disorder, pointing out that the Veteran did not have a diagnosis of depression or anxiety. As for the favorable opinions, an April 2013 Disability Benefits Questionnaire (DBQ) examination submitted by the Veteran shows the diagnoses were mood disorder due to medical condition with major depressive features, alcohol dependence. The examiner noted that the Veteran was treated for depression after service. In an accompanying opinion the examiner noted the Veteran had a diagnosis of mood disorder due to medical condition with major depressive features and a secondary diagnosis of alcohol dependence. The examiner opined that the Veteran’s service-connected gastritis appeared to have permanently aggravated his depressive symptoms. The examiner concluded that the Veteran’s mental disorder was more likely than not aggravated by pain and limitations of his service-connected gastritis. In January 2021, a private examiner, a licensed psychologist opined that it is as likely as not that the Veteran’s major depression began in service and alternatively it is as likely as not that his depression was aggravated by his service-connected gastritis. The examiner explained that a review of the evidence shows that the Veteran’s psychiatric disorder over the years was variously diagnosed as PTSD, depressive disorder, anxiety disorder, adjustment disorder, alcohol use disorder, manic depressive disorder, and schizophrenia. She found it significant that nearly all these records include a diagnosis of depression. She noted that during service in July 1961 the Veteran was hospitalized for psychiatric symptoms and was diagnosed with schizophrenic reaction. The private examiner explained that the Veteran’s treatment records are in contrast to the Veteran’s VA examinations whereby the examiners explained that his psychiatric disorders were not due to service and instead were subsumed by the diagnosis of his personality disorder. This diagnosis was first documented during service in August 1961 after the Veteran was deemed not to have a schizophrenic reaction. The private examiner pointed out that the personality disorder diagnosis appears to have been carried over by the VA examinations and upheld. However, the examiner found it significant that after careful review of treatment records from approximately 1986 to 2018 there was virtually no mention of a personality disorder and the Veteran was consistently diagnosed and treated for a variety of other mental health problems most notably his chronic depression. She pointed out that pharmacotherapy is not considered first line treatment for a personality disorder and there is no FDA approved medication for a personality disorder. She concluded that the Veteran’s mental health records consistently suggest that the Veteran did not suffer from a personality disorder. His service entrance examination was clear for mental health issues and there was no evidence that the Veteran suffered from mental health issues prior to service. After service the evidence does not show that the Veteran engaged in a pattern of blatant disregard for others’ rights. The examiner explained that a 2012 study shows that individuals diagnosed with gastritis are at significantly higher risk for mood and anxiety disorders. A study in 2003 also found that gastrointestinal disease was strongly associated with the presence of depressive symptoms. The private examiner pointed out that the Veteran’s struggle with mood symptoms and alcohol use is documented in the VA treatment records. For example treatment records in October 2014 show the Veteran’s mood was depressed due to multiple medical conditions. In June 2013 the records show the Veteran was depressed for 25 years. Treatment records in March 1989 show the Veteran was depressed and in April 1989 show his disturbance was compounded by a lifelong history of chronic depression including four hospitalizations. The private examiner reviewed the multiple VA medical opinions of record. The January 2021 private examiner explained the medial literature shows that there is a prevalence of depression and risk factors among entry-level military personnel. The literature also shows prevalence of substance abuse in those with depression and it was possible that persons with more psychopathology such as depressive and anxiety symptoms gravitate towards harder drugs as a form of self-medication. She also found it significant that there is a body of literature examining the relationship between chronic pain and depressive/anxiety symptoms. Studies show that chronic pain and depression may share a common pathophysiology such as deficiencies in serotonin or excessive production of cortisol. Research shows that pain was predictive of depression. The January 2021 private examiner opined that it is as likely as not that the Veteran’s major depression began in service. She reiterated that the Veteran clearly had mental health symptoms in service however they were misdiagnosed as a personality disorder. She opined that it is as likely as not that his symptoms in service were the beginning of his depressive disorder and his issues clearly continued post service, consistently being diagnosed as a depressive disorder by his providers. She opined that it also is as likely as not that his depression was aggravated by his service-connected gastritis. While there are medical opinions against a finding that the Veteran’s psychiatric disorder was related to service, the unfavorable opinions determining the Veteran during his lifetime had a diagnosis of personality disorder addressed the etiology of the personality disorder in terms of whether it was caused or aggravated by service and did not address the correct standard as to whether the personality disorder was subjected to a superimposed disease or injury during service which created additional disability. Moreover, and of significant import, the January 2021 private opinion puts the evidence into relative equipoise (meaning that the evidence for and against the Appellant’s claim is essentially equal), as to whether the Veteran during his lifetime had major depressive disorder that was related to service. Thus, entitlement to service connection for an acquired psychiatric disorder is granted. The Board finds that the evidence in this case is so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In light of the decision herein to grant service connection for an acquired psychiatric disorder on a direct basis the matter of whether the Veteran had a psychiatric disorder that was secondary to his service-connected gastritis need not be further addressed. REASONS FOR REMAND Issue 2: Entitlement to TDIU. As for the issue of entitlement to TDIU, in light of the decision herein the Agency of Original Jurisdiction has not yet had the opportunity to effectuate the rating for the now service-connected acquired psychiatric disorder. The issue of entitlement to TDIU is inextricably intertwined with this matter. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).   The matter is REMANDED for the following action: After effectuating the rating for the now service-connected acquired psychiatric disorder, adjudicate the claim for TDIU. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.