Citation Nr: 21042410 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-61 348 DATE: July 13, 2021 ORDER New and material evidence has not been received to reopen the claim for service connection for a personality disorder, and therefore, the claim is denied. REMANDED Service connection for posttraumatic stress disorder (PTSD) is remanded. Service connection for a psychiatric disorder other than PTSD (claimed as bipolar disorder) is remanded. FINDINGS OF FACT 1. In a December 2013 rating decision, service connection for a personality disorder was denied; the Veteran did not file a timely notice of disagreement with that decision or submit new and material evidence within the appeal period. 2. Evidence received subsequent to the expiration of the appeal period for the denial of service connection for a personality disorder does not relate to any unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The December 2013 rating decision which denied service connection for a personality disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the claim for service connection for a personality disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to February 1980 and from February 1980 to February 1984. He was honorably discharged from his first period of service and discharged from his second period of service under conditions other than honorable. See January 2010 VA Administrative Decision. Thus, the Veteran is only eligible for VA compensation benefits for disabilities which began during or are etiologically related to his first period of active duty service. See 38 C.F.R. § 3.12. His discharge from his second period of active duty service, under conditions other than honorable, is a bar to VA benefits. See id. Although he originally requested a hearing in his December 2016 Substantive Appeal (VA Form 9), his representative withdrew this request in correspondence dated January 2020. Claim to Reopen Generally, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105. 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 C.F.R. § 3.156. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance, because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 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). 1. Whether new and material evidence has been received to reopen the claim for connection for a personality disorder Service connection for a personality disorder was previously denied in December 2013 rating decision because personality disorders are deemed to be congenital or developmental abnormalities and are not considered to be disabilities for the purposes of service connection; the Veteran did not file a notice of disagreement with that decision or submit new and material evidence within that appeal period. Therefore, the December 2013 rating decision became final. In February 2015, the Veteran sought to reopen his claims for a personality disorder be reopened. Notably, the Veteran also asserted entitlement to service connection for psychiatric disorders (including PTSD and bipolar disorder); these are addressed in the Remand section below. With regard to the claimed personality disorder, the Board notes that 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). Thus, while new evidence has been submitted with respect to the Veteran's claim, there is no evidence whatsoever which would supersede the laws and regulations which prohibit service connection for personality disorders, and therefore, it is not material. 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, it is unclear from the evidence before the Board whether the Veteran's mental health problems apart from his diagnosed personality disorder are related to service, and therefore, those issues are remanded. However, VA has not received evidence with respect to the Veteran's personality disorder suggesting reopening is warranted. As noted, the claim for service connection for a personality is always precluded under the law and regulation, and therefore, the Board finds new and material evidence has not been received and the claim may not reopened. REASONS FOR REMAND 1. Service connection for PTSD is remanded. 2. Service connection for a psychiatric disorder other than PTSD (claimed as bipolar disorder) is remanded. The Veteran is claiming he has a psychiatric disorder (claimed as PTSD and bipolar disorder) which began during or is etiologically related to his first period of active duty service. He has stated that during Advanced Individual Training (AIT) at Fort Gordon sometime between March and April 1977, his Sergeant constantly solicited him for sex, grabbed his penis one time, and called him racial slurs. See July 2015 Statement in Support of Claim for PTSD; see also July 2015 VA PTSD examination. At his July 2015 VA PTSD examination, the Veteran reported that he first sought mental health treatment on active duty following his claimed stressor, was inpatient at MacDill Air Force Base (AFB) in Tampa, Florida for two weeks, and was diagnosed with a personality disorder and substance abuse. In his claim for compensation for a personality disorder, he indicated he received treatment at MacDill AFB from 1979 to 1980. The Board notes that the Veteran's personnel record lists his assignment at MacDill AFB beginning in December 1981. The Veteran's service treatment records reflect that he was admitted to MacDill AFB on June 21, 1982, for psychiatric observation, individual therapy, and to rule out dysthymic disorder. A June 24, 1982, discharge notice reflects that a discharge diagnosis was deferred to rule out (1) character behavior disorder, mixed and/or borderline personality disorder, and (2) dysthymic disorder, substance abuse disorder, polysubstance abuse (by history). This same notice reflects that the Veteran was being air evacuated to Eglin AFB for inpatient psychiatric evaluation, treatment, and disposition. Significantly, inpatient psychiatric treatment records during a veteran's active duty service are at times stored separately from his or her service treatment records and must be requested separately. This has not been accomplished by the AOJ, and therefore, on remand, specific requests must be made for psychiatric records from MacDill AFB dated June 21, 1982 to June 24, 1982, and from Eglin AFB dated June 24, 1982 to July 12, 1982, (the day the Veteran went AWOL). It is noted that the Veteran's current last name is different than the last name he used during service, as noted in the heading of this remand. The Board also finds that additional steps must be taken to obtain private records on remand. In February 2015, the Veteran submitted an authorization to allow VA to obtain private records from Northlake Family Practice in Columbia, South Carolina. The AOJ attempted to obtain these records in March 2015 and was informed that the medical office did not have any record of the Veteran. In this regard, the Board notes that the medical authorization and request used the Veteran's last name which he used in service and that it is likely that any current records would be under his new last name. Thus, additional attempts to obtain these records must be made on remand. Following completion of the foregoing, given that these outstanding records may substantiate the Veteran's claims, a new examination and opinions are warranted. Notably, at a July 2015 VA examination, the examiner indicated that he or she could not state that a military sexual trauma (MST) occurred without resorting to speculation yet failed to provide a rationale for this finding. Thus, on remand the examiner must consider whether the MST occurred and whether the Veteran has a PTSD diagnoses as a result of the claimed MST. As noted previously, given that service connection may be warranted for psychiatric disorders superimposed over personality disorders, this must also be considered. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Attempt to obtain the following inpatient psychiatric records with the last name that the Veteran used during service from: MacDill AFB dated June 21, 1982 through June 24, 1982; and Eglin AFB dated June 24, 1982 through July 12, 1982. All attempts to obtain these records must be made in accordance with VA regulation. If it is determined that any records are unavailable or that further attempts to them would be futile, the AOJ must prepare a Memorandum of Formal Finding of Unavailability outlining all steps taken to attempt to obtain them and associate this Memorandum with the evidence of record. 2. Request that the Veteran complete and return a medical authorization using his current last name to allow VA to attempt to obtain records from Northlake Family Practice. All attempts to obtain these records must be made in accordance with VA regulation. 3. Following completion of steps 1 and 2, afford the Veteran the appropriate mental health examination(s) to determine the etiology of any diagnosed psychiatric disorders. The examiner must obtain from the Veteran and record in the examination report a complete history regarding the onset and continuity of symptoms. Following a review of the record and with consideration of the Veteran's statements, the examiner should provide the following opinions: (a) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's lay statements and service records corroborate that a personal assault occurred during his first period of active duty service (from November 1976 to February 1980). See 38 C.F.R. § 3.304(f)(5). Why or why not? Specifically, the examiner should address whether any disciplinary issues are markers of an in-service assault as well as the basis for any determination. (b) If the examiner finds evidence that a personal assault occurred during the Veteran's first period of active service, the examiner must determine whether it is at least as likely as not (50 percent probability or higher) that any PTSD manifested is related to the in-service personal assault. Why or why not? Consideration should be given as to whether any PTSD was superimposed over the Veteran's personality disorder. (c) Regardless of any findings in (a) or (b), determine whether it is at least as likely as not that the Veteran's bipolar disorder began during or was superimposed over his personality disorder (i) during his first period of active service (November 1976 to February 1980), OR (ii) within one year of separation from that period of service (by February 1981)? Why or why not? (d) If the answers to (c) are both in the negative, determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's bipolar disorder is otherwise etiologically related to his active duty service. Why or why not? A complete rationale for EACH opinion is required. If the examiner is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.