Citation Nr: 21026134 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-00 654 DATE: April 29, 2021 ORDER New and material evidence has not been received, and the claim for service connection for a personality disorder is not reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder other than personality disorder, to include anxiety disorder and depressive disorder, is remanded. FINDINGS OF FACT 1. In an October 2009 rating decision, the Regional Office (RO) denied service connection for a personality disorder. The Veteran did not timely appeal this decision, nor was new and material evidence received within one year of notice of the decision being mailed to the Veteran. 2. Additional evidence received since the October 2009 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for a personality disorder; accordingly, the claim is not reopened. CONCLUSION OF LAW The October 2009 rating decision that denied service connection for a personality disorder is final; new and material evidence to reopen the claim has not been received. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1973 to January 1974. These matters come before the Board of Veterans’ Appeals (Board) from a January 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in April 2017. A transcript of this hearing is associated with the record. The Board previously remanded these matters for evidentiary development in December 2018 and again in June 2020. 1. Whether new and material evidence has been received to reopen a claim for service connection for a personality disorder The Veteran seeks service connection for an acquired psychiatric disorder, which includes several diagnoses. Implicit in this claim is the contention that new and material evidence has been received which is sufficient to reopen a previously disallowed claim for a personality disorder. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final denial is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). The Veteran previously filed a claim for service connection for a personality disorder, which was denied in an October 2009 rating decision. That decision noted that the Veteran underwent a psychiatric evaluation in service following which he was diagnosed with a personality disorder; however, the decision stated such disorders “were characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior.” As such, the Veteran’s personality disorder was not a disease within the meaning of applicable legislation. The Veteran was notified but did not appeal the decision. Accordingly, the October 2009 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In December 2010, the Veteran filed the instant claim requesting that his prior claim for service connection for a personality disorder be reopened. Notably, the Veteran also asserted entitlement to service connection for other acquired psychiatric disorders, to include anxiety disorder and depressive disorder; these are addressed in the Remand section below. With regard to the claimed personality disorder, the Board notes that, as stated in the October 2009 rating decision, relevant laws and regulations are clear that personality disorders are deemed to be congenital or developmental abnormalities and are not considered to be disabilities for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Personality disorders are likewise not entitled to the presumption of soundness under 38 U.S.C. § 1111, thereby not requiring VA to show by clear and unmistakable evidence that the personality disorder preexisted service. See Morris v. Shinseki, 678 F.3d 1346, 1351 (Fed.Cir.2012). The Board recognizes that disability that results from a mental disorder that is superimposed upon a personality disorder may be service connected. 38 C.F.R. § 4.127. As discussed below, there is the possibility the Veteran’s mental health problems apart from his diagnosed personality disorder are related to service. However, VA has received no new evidence with respect to the Veteran’s personality disorder suggesting reopening is warranted. Indeed, the claim is precluded under the law. The Board notes that, in March 2018 correspondence, the Veteran described his frustration that VA seemed to characterize all of his mental problems under the term “personality disorder”; he reiterated his belief that his mental problems stemmed from in-service experiences. The Board acknowledges this complaint, and has gone to great lengths to ensure VA has satisfied its duty to assist with regard to all non-personality disorder mental problems. The Board is providing the Veteran another chance on remand to submit further evidence substantiating his claim regarding all non-personality disorder psychiatric problems. However, there is no legal basis for entitlement specifically with respect to his personality disorder. As such, the claim must be denied. For these reasons, the Board finds new and material evidence has not been received and the claim for service connection for a personality disorder is not reopened. Annoni v. Brown, 5 Vet. App. 463 (1993). REASONS FOR REMAND 2. Entitlement to service connection for an acquired psychiatric disorder other than personality disorder, to include anxiety disorder and depressive disorder, is remanded. The Veteran contends he is entitled to service connection for an acquired psychiatric disorder, to include as due to a military sexual assault. His service treatment records show he was evaluated in 1973 and diagnosed with a personality disorder, to include situational anxiety and depression, and was recommended for discharge. The Veteran has received multiple VA Compensation and Pension (C&P) examinations over the course of his appeal, as well as several private evaluations. These demonstrate he has been diagnosed with (in addition to personality disorder) bipolar disorder, schizoaffective disorder, anxiety disorder, and depressive disorder. The Board is aware that personality disorders are deemed to be congenital or developmental abnormalities and are not considered to be disabilities for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Moreover, personality disorders (unlike other acquired psychiatric disorders) are not entitled to the presumption of soundness under 38 U.S.C. § 1111. See Morris v. Shinseki, 678 F.3d 1346, 1351 (Fed.Cir.2012). However, disability that results from a mental disorder that is superimposed upon a personality disorder may be service connected. 38 C.F.R. § 4.127. The crucial question in this case is whether any of the Veteran’s psychiatric disorders other than personality disorder were incurred in service or are otherwise related to service. To that end, in June 2020, the Board directed a VA examiner to opine as to whether any of the Veteran’s acquired psychiatric disorders preexisted service or were otherwise related to service. A responsive opinion was provided in November 2020. The examiner determined the Veteran’s personality disorder preexisted service; however, the examiner noted, “with regard to the anxiety and depression, there is not sufficient information to link either disorder to the veteran’s military service given that he was not diagnosed with, or treated for, either disorder in service.” Rather, the examiner noted, the Veteran’s anxiety and depression “symptoms were deemed to be part of his personality disorder.” Further, the examiner stated, there is “no evidence that any symptoms of anxiety or depression persisted beyond the service as there is no mention of psychiatric difficulty for many years post-military service.” On review, even assuming there is sufficient evidence to determine the Veteran’s non-personality disorder mental health problems did not preexist his service, the Board finds the November 2020 C&P opinion inadequate to support a decision in this matter. In particular, the examiner’s statement that there is “no evidence” the Veteran’s anxiety and depression persisted beyond his service disregards the Veteran’s own lay statements, which reflect his belief that his mental health problems began in service and have persisted continuously to the present day. The examiner’s finding also evades prior findings by medical professionals (including an October 2019 C&P opinion which the Board asked the examiner to discuss) noting a possible link to service. In addition, the Board specifically directed the examiner to address the Veteran’s lay statements regarding the history of his acquired psychiatric disorder/s. The Veteran has repeatedly argued his symptoms began or worsened in service and have persisted to the present day. Unfortunately, the examiner offered no more than a conclusory opinion on this matter. A remand is warranted. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate examiner who has not previously examined the Veteran to determine the nature and etiology of any acquired psychiatric disorder, to include anxiety disorder and depressive disorder (and with consideration of the Veteran’s prior diagnoses of schizoaffective disorder and bipolar disorder). The examiner must respond to the following: (a) Identify any current acquired psychiatric disorder/s. (b) Is there clear and unmistakable (obvious and manifest) evidence demonstrating the Veteran had an acquired psychiatric disorder other than personality disorder that existed prior to his entry into active duty? Specifically discuss the October 2019 C&P opinion stating the Veteran’s “pre-existing anxiety symptoms were exacerbated by experiences related to military service” and he had “an established history of situational depression while on active duty.” (c) If the answer to (a) is “Yes,” is there clear and unmistakable (obvious and manifest) evidence demonstrating that an acquired psychiatric disorder other than personality disorder was not aggravated (i.e., the underlying disability was not increased in severity) beyond its normal progression during his period of active duty? (d) If the answer to (a) is “No,” is it at least as likely as not (50 percent or greater probability) that an acquired psychiatric disorder other than personality disorder was incurred in active duty or is otherwise related to service? The examiner should specifically discuss: • The Veteran’s December 1973 in-service psychiatric evaluation following which he was diagnosed with personality disorder with symptoms of “situational anxiety and depression.” • The October 2019 C&P opinion stating the Veteran had “an established history of situational depression while on active duty.” • All pertinent lay statements, to include the Veteran’s descriptions of his experiences in service and his reports of continuous mental health problems since service. • The Veteran’s May 2019 statement in which he described being the victim of an assault while on active duty. All opinions must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, 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.