Citation Nr: 21041521 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-01 796 DATE: July 9, 2021 ORDER New and material evidence having been received, the claim for service connection for antisocial personality disorder is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, previously claimed as antisocial personality disorder, is remanded. FINDINGS OF FACT 1. An unappealed November 2002 rating decision denied the claim for service connection for antisocial personality disorder. 2. The evidence associated with the claims file subsequent to the November 2002 rating decision is not cumulative or redundant of the evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for antisocial personality disorder. CONCLUSION OF LAW The November 2002 rating decision denying the claim for service connection for antisocial personality disorder; new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for antisocial personality disorder. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1972 to August 1973. This matters comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record. Additional evidence, namely a statement from the Veteran's sister, was received after the hearing. Relevant to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, such was originally adjudicated by the RO as entitlement to service connection for antisocial personality disorder. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder. Applicable Statutes and Regulations A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The 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, the Secretary of VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In this case, the Board concludes that the Veteran has submitted such evidence to reopen that claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. Under 38 U.S.C. § 1110 there must be a disability due to an identified personal injury suffered or disease or injury, contracted in-service. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted based on evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. New and material evidence having been received, the claim for service connection for antisocial personality disorder now claimed as depression is reopened. The Veteran's claim for service connection for antisocial personality disorder originally denied in a rating decision decided in November 2002. Specifically, the rating decision found that the Veteran's antisocial personality disorder existed prior to enlistment and that a personality disorder is not a disability that can be incurred or aggravated by service for which VA compensation may be paid. As a result, his claim was denied as no chronic condition subject to service connection had been found. Evidence considered in the November 2002 rating decision included service treatment records and post-service VA treatment records. In November 2002, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection was received until August 2014, when VA received his petition to reopen such claims. Therefore, the November 2002 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claims for service connection was received prior to the expiration of the appeal period stemming from November 2002 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). The pertinent evidence received since the November 2002 rating decision includes updated VA treatment records, January 2021 hearing testimony and a statement from the Veteran's sister. VA treatment records reflect diagnoses of unspecified depressive disorder and intermittent explosive disorder. That evidence is new and material. In this regard, it has not been previously considered by VA and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for antisocial personality disorder. Accordingly, reopening of the claim of entitlement to service connection is warranted. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran seeks to establish service connection for an acquired psychiatric disorder. During the January 2021 hearing, the Veteran testified that he had psychiatric symptoms during service and that he also had difficulty adjusting to service. He also testified that he had a difficult childhood but that he never had mental health treatment prior to service. Service treatment records contain a medical evaluation dated July 9, 1973 which documents the Veteran's antisocial personality disorder and mentions several anti-social actions taken by the Veteran in-service. The Veteran's separation exam also noted severe antisocial personality disorder. In McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The record is sufficient to trigger the VA's duty to provide the Veteran with an adequate VA examination for his acquired psychiatric disorder. The record indicates that there is a currently diagnosed acquired psychiatric disorder and the service treatment reflect a diagnosis of antisocial personality disorder. See McLendon v. Nicholson, supra. On remand, such an etiology opinion should be obtained. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain the Veteran's complete service personnel records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Following the receipt of outstanding records, forward the claims file to an appropriate examiner to determine the nature and etiology of the Veteran's claimed acquired psychiatric disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for further examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) Identify all of the Veteran's acquired psychiatric disorders that meet the DSM-5 criteria that have been present at any time proximate to his February 2015 claim, even if such is asymptomatic or resolved. (B) If a personality disorder is diagnosed, is there an additional disability due to a disease or injury superimposed upon such disorder during service? If so, please identify the additional disability. (C) For each diagnosed acquired psychiatric disorder other than a personality disorder, is it at least as likely as not (50 probability or greater) that such was caused by his service or is otherwise related to service? The examiner should specifically address the July 1973 diagnosis of antisocial personality disorder. (Continued on the next page) A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.