Citation Nr: 21032335 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 13-02 617 DATE: May 26, 2021 ISSUE Entitlement to service connection for an acquired psychiatric disorder other than an unspecified stressor-and trauma-related disorder. ORDER Entitlement to service connection for an acquired psychiatric disorder other than an unspecified stressor-and trauma-related disorder is denied. FINDING OF FACT The competent and credible evidence does not reflect a diagnosis of an acquired psychiatric disorder other than an unspecified stressor-and trauma-related disorder during the pendency of the appeal. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder other than an unspecified stressor-and trauma-related disorder have not been met. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1970 to May 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) at the Central Office in Washington, D.C. regarding the claim currently on appeal. A transcript of the proceeding has been associated with the electronic claims file. By way of background, the Veteran had originally filed a claim for entitlement to service connection for post-traumatic stress disorder, and entitlement to TDIU, which were each denied in rating decisions from January 2010. The claims were appealed to the Board, who in May 2017 recharacterized the Veteran's claim as entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected orthopedic disabilities. That issue and the TDIU claim were each remanded. See further Clemons v. Shinseki, 23 Vet. App. 1 (2009). Those claims returned to the Board, and in a Decision from August 2018, the Board again recharacterized the Veteran's claim as two distinct claims under Clemons. The first claim, entitlement to service connection for an acquired psychiatric disorder, diagnosed as unspecified stressor-and trauma-related disorder was granted by the Board. The second claim, entitlement to service connection for an acquired psychiatric disorder other than an unspecified stressor-and trauma-related disorder (emphasis added) was remanded. The Veteran's TDIU claim was also remanded as an inextricably intertwined claim. See Harris v. Derwinksi, 1 Vet. App. 180, 183 (1991). Following the August 2018 remand, the claims again returned to the Board. In a Decision from July 2020, the Board dismissed the TDIU claim as moot, as the RO had granted entitlement to TDIU, effective April 20, 2009, the date that the Veteran's claim for entitlement to TDIU was received. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.101. The July 2020 Board Decision found that substantial compliance with the Board's prior remand directives had not taken place. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As a result, the claim of entitlement to service connection for an acquired psychiatric disorder other than an unspecified stressor-and trauma-related disorder was remanded. The claim has since returned to the Board. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall, Id. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for an acquired psychiatric disorder other than an unspecified stressor-and trauma-related disorder. The Board finds that a discussion of the procedural history is helpful for the adjudication of the Veteran's claim. In brief, the Veteran was provided VA examinations in July 2011 and September 2017. The July 2011 VA examiner noted a diagnosis of an anxiety disorder. The September 2017 VA examiner did not indicate a current diagnosis of anxiety disorder, but instead an unspecified personality disorder. Given this discrepancy, the Board remanded this matter in August 2018 for an additional VA examination to clarify the current diagnosis and etiology of the Veteran's acquired psychiatric disorder(s) other than an unspecified stressor- and trauma-related disorder. The Board clarified in the remand that a personality disorder is not a disability for which service connection may be granted; rather, it is considered a congenital or developmental abnormality. See 38 C.F.R. § 3.303 (c). As VA regulations specifically prohibit service connection for congenital or developmental defects, the Veteran's diagnosed unspecified personality disorder would be, therefore, not a disability for which VA compensation benefits may be awarded. However, a superimposed acquired psychiatric disorder resulting from such personality disorder or representing an aggravation of the disorder may be service connected. See 38 C.F.R. § 4.127 ; VAOPGCPREC 82-90 (1990) (cited at 55 Fed. Reg. 45,711 ) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). The claim then returned to the Board in July 2020. The Board noted that the Veteran was contacted in December 2019 regarding his scheduled examination, but he cancelled the appointment because the Veteran was told that having a chaperone in the office during his C&P evaluation would be at the providers discretion. See 38 C.F.R. § 3.655. The Board then afforded the Veteran the benefit of the doubt and noted that the Veteran may have misunderstood the VA scheduler. As a result, the RO was to reach out to the Veteran to ask his intention regarding the claim, and to inform him of the ramifications under 38 C.F.R. § 3.158 for not attending an examination. That development took place, and the Veteran's claim has since returned to the Board. At the Veteran's request, the Veteran was given an examination with a private psychologist, as opposed to through a VA examiner. That private examination occurred in February 2021. The Veteran was seen in person, and his claims file was reviewed. The private provider considered the lay statements based off of a personal interview with the Veteran, and conducted clinical testing which included the Veteran's pre-and-post military histories, including that for his family, his occupation/education, his mental health, his legal and behavioral, and any substance abuse history. The private provider based their clinical evaluation on the DSM-5. The private provider then noted that the Veteran only had a diagnosis of unspecified stressor-and trauma-related disorder. No other diagnoses were found. Although anxiety was noted to be a symptom of that diagnosis, a separate diagnosis of an anxiety disorder was not found, nor was an unspecified personality disorder. The private provider then clarified in the Medical Opinion portion of the disability benefits questionnaire, that the Veteran was Not diagnosed with any other mental health condition other than unspecified stressor-and trauma-related disorder since his reported symptoms did not meet criteria for such diagnoses. Thus, no further diagnoses were found. There is no evidence that the private psychologist was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the diagnosis of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board also notes that the Veteran's claims file contains no further evidence of a current diagnosis for an acquired psychiatric disorder other than an unspecified stressor-and trauma-related disorder. While VAMC records indicate symptoms of anxiety, those records do not indicate that he has a current diagnosis of a separate anxiety disorder. In consideration of the above, the Board finds that the Veteran does not have a current diagnosis of an acquired psychiatric disorder other than an unspecified stressor-and trauma-related disorder. The Veteran was previously noted to have an anxiety disorder from the July 2011 VA examiner, and an unspecified personality disorder from the September 2017 VA examiner. As there was a discrepancy with these findings, the Veteran's claim was remanded for an examination clarifying the current diagnoses. The Veteran did not attend the first scheduled examination, and after the Veteran was given the benefit of the doubt and his claim was remanded again, the Veteran requested the examination be through a private provider instead. That request was followed by VA, and in an opinion from February 2021, the private psychologist clearly stated that the Veteran did not have an acquired psychiatric disorder other than the current unspecified stressor-and trauma-related disorder, for which he is currently service connected. The private psychologist used the appropriate DSM-5, conducted an in-person interview, reviewed the Veteran's mental health diagnostic history, and then clarified in their Medical Opinion that no other mental health diagnoses were applicable. The Board has afforded that opinion significant probative weight. The Board also notes that following the February 2021 private psychological exam, the RO increased the Veteran's disability rating for his service-connected unspecified stressor and trauma related disorder from 30 percent to 50 percent. The Veteran was also informed through a Supplemental Statement of the Case (SSOC) that same month, that his current service-connected disability accounts for several symptoms, one of which is anxiety. As a result, the Board finds that the Veteran did not have a current diagnosis for an acquired psychiatric disorder other than an unspecified stressor-and trauma-related disorder. 38 C.F.R. § § 3.303(a). Additionally, the Board has considered the recent holding in Saunders v. Wilkie in which service connection was deemed possible in the absence of a diagnosis when such factors as pain are shown to limit functional ability. Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018) ("pain alone can serve as a functional impairment and therefore qualify as a disability"). That Federal Circuit decision qualified that holding, however: "[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain. To establish the presence of a disability, the veteran will need to show that [her] pain reaches the level of functional impairment of earning capacity." Id. at 1365. In this case, however, during the pendency of the appeal, the Veteran did not claim that an acquired psychiatric disorder other than an unspecified stressor-and trauma-related disorder caused him pain, nor that it resulted in a functional loss. Thus, the Veteran does not have a present disability manifest by pain that could be identified as part of his claim for service connection for an acquired psychiatric disorder other than an unspecified stressor-and trauma-related disorder pursuant to Saunders. Therefore, the first criteria for service connection is not met for the claimed disability, as there is no evidence that the Veteran had a current diagnosis of an acquired psychiatric disorder other than an unspecified stressor-and trauma-related disorder. 38 C.F.R. § § 3.303(a). As far as the second and third criteria for service connection, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability during the period of the appeal. See 38 U.S.C. § 1110. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, in the absence of competent evidence showing a current diagnosis of an acquired psychiatric disorder other than an unspecified stressor-and trauma-related disorder, it is unnecessary to address the remaining elements of the claims for entitlement to service connection. See Brammer, 3 Vet. App. at 225. Thus, the Board finds that entitlement to service connection for an acquired psychiatric disorder other than an unspecified stressor-and trauma-related disorder is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and entitlement to service connection for an acquired psychiatric disorder other than an unspecified stressor-and trauma-related disorder is denied. 38 U.S.C. § 5107, Gilbert v. Derwinski, Vet. App. 49, 55-57. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.