Citation Nr: 21024215 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 12-21 606 DATE: April 22, 2021 REMANDED The issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1987 to May 1991. In January 2018, the Board denied service connection for a psychiatric disorder. The Veteran appealed the Board decision to the Court of Appeals for Veterans Claims (CAVC or Court), which vacated the decision and remanded it back to the Board for further development in October 2018, pursuant to a Joint Motion for Partial Remand (JMPR). In September 2019 and September 2020, the Board remanded the claim for further evidentiary development. Unfortunately, the Board must remand the appeal once again for further evidentiary development. Specifically, the Court determined that the opinions provided in March 2012 and September 2016 regarding the nature and etiology of the Veteran’s psychiatric disorder were inadequate. (Those examinations found that the Veteran had diagnoses of anxiety disorder and schizotypal personality disorder.) The March 2012 VA examiner provided a negative nexus opinion regarding the Veteran’s anxiety disorder due to the Veteran’s evasiveness and difficulty obtaining information regarding the onset of symptoms. The September 2016 examiner opined that the Veteran’s schizotypal personality disorder was related to his in service symptoms of trouble sleeping, depression, excessive worry, or nervous trouble and that the Veteran’s personality disorder was not caused by his service-connected disabilities. A December 2019 examiner diagnosed schizotypal personality disorder and included the same rationale as was provided in the March 2012 VA Examination report. Therefore, the Board remanded the claim to obtain another opinion that adequately addresses the evidence of the record. 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. See 38 C.F.R. §§ 3.303(c), 4.9. Congenital or developmental "defects," such as personality disorders, automatically rebut the first prong of the presumption of soundness and are considered to have preexisted service. 38 C.F.R. § 3.303(c). However, 38 C.F.R. § 4.127 provides that a disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected. Any other diagnosed psychiatric disorder may provide a basis for service connection if the evidence demonstrates a psychiatric disorder was superimposed upon a diagnosed personality disorder. In an October 2020 opinion, a VA examiner stated that personality disorders are long-lasting and often lifelong. The examiner opined that it was most likely than not that the Veteran’s schizotypal personality disorder was a pervasive trait that spanned a lifetime. The examiner continued that the personality disorder was not aggravated beyond normal progression of the disease because it was likely present prior to service, given the Veteran’s social and relationship issues. The examiner stated that schizotypal personality disorder follows a natural progression that was unlikely to be influenced or aggravated during active duty. The examiner concluded that the Veteran’s schizotypal personality disorder was not caused by a medical condition. The examiner opined that the Veteran’s mental condition was not caused by, or related to, an in-service assault that resulted in a facial facture. Available VA treatment records show that the Veteran has been assessed to have DSM-V diagnoses of adjustment disorder and depressive disorder. See October 2020 VA Medical Treatment Records (CAPRI). The October 2020 VA examiner opinion does not adequately address or answer the questions necessary to make a clear and informed determination in this matter. The examiner addressed whether the Veteran’s personality disorder was related to his service or aggravated by his service. As outlined by VA regulations, service connection for personality disorder cannot be granted on a direct or aggravation basis. Service connection can be granted for an additional disability that was superimposed upon the diagnosed personality disorder. The examiner should have address whether the Veteran had diagnosis of an additional mental disorder that was superimposed upon his schizotypal personality disorder. Indeed, there is evidence of record regarding other mental health diagnoses that should have been addressed in these opinions. Therefore, on remand, an examination needs to be obtained to clarify the diagnoses of the Veteran’s mental health conditions and to determine if any diagnosed psychiatric disorder was superimposed on the diagnosed personality disorder during service and resulted in an additional disability. Accordingly, this matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records for his psychiatric disorders. The Agency of Original Jurisdiction (AOJ) should secure any necessary authorizations. If the records cannot be obtained, inform the Veteran of the records that could not be obtained, including what efforts were made to obtain them. The Veteran should also be notified that he may submit any such records. All efforts should be recorded in the claims folder. Additionally, all updated VA treatment records should be obtained. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his psychiatric disorders. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The claims file should be made available to the examiner for review. After record review and examination, the VA examiner should opine (with supporting rationale) as to the following inquiries, as clearly and precisely as possible: (a) Does the Veteran have a current diagnosis of any acquired psychiatric disorders (other than schizotypal personality disorder)? If so, please provide the diagnosis or diagnoses. In addressing this matter, the examiner must consider and address the VA treatment records noting DSM-V diagnoses of an adjustment disorder and a depressive disorder. If there are different diagnoses other than those currently of record, the examiner should attempt to reconcile the diagnoses with the evidence of record. (b) If there are diagnoses of a psychiatric disorder (other than schizotypal personality disorder), is it at least as likely as not (50 percent or greater probability) that such diagnosed disorders were incurred in, caused by, or etiologically related to the Veteran's service, to include in-service assault that resulted in facial fracture? (c) Regarding the diagnosis of schizotypal personality disorder, is it at least as likely as not (50 percent or greater probability) that the personality disorder was subject to a superimposed disease or injury in service (e.g. psychiatric disorder) resulting in additional disability? If so, identify any additional disability that the Veteran suffered as a result of an injury that was superimposed on his personality disorder. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the 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. Then, review the record, conduct any additional development deemed necessary, and readjudicate the claim. If any benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination that is scheduled may impact determinations made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.