Citation Nr: 22015906 Decision Date: 03/20/22 Archive Date: 03/20/22 DOCKET NO. 19-08 180 DATE: March 20, 2022 REMANDED Whether the severance of service connection for unspecified personality disorder (adjustment disorder with depressed mood) was proper, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 2013 to August 2015. The case is on appeal to the Board of Veterans' Appeal from a January 2017 rating decision. The Veteran testified before the Board in November 2021. Whether the severance of service connection for unspecified personality disorder (adjustment disorder with depressed mood) was proper, is remanded. A December 2015 rating decision granted service connection for unspecified personality disorder (adjustment disorder with depressed mood). The RO found that service connection was established as directly related to service. A January 2016 rating decision proposed to sever service connection. The rating decision explained that there had been a clear and unmistakable error in the award of service connection because VA regulations prohibit service connection for a personality disorder. The January 2017 rating decision on appeal made the severance final on this basis. The critical questions in dispute in this case are (1) the nature of the Veteran's current diagnosis, (2) whether there is a nexus to service, including (3) whether a psychiatric condition preexisted service and, if so, (4) whether it was aggravated to any degree therein. On this basis, the appeal must be remanded to (1) obtain the Veteran's service personnel records (SPRs); (2) obtain outstanding VA medical records; and (3) obtain a new VA opinion. Regarding the SPRs, the claims file currently includes the Veteran's complete service treatment records (STRs). However, his SPRS have not been obtained. As his SPRs would appear to be relevant, they should be obtained. Regarding the VA medical records, the Veteran testified at his Board hearing that he first started seeking treatment after service at VA when he was separated from service. Board Hr'g Tr. 4. The Board observes that he was discharged in August 2015. The claims file currently includes VA medical records beginning from May 2017. Because the VA medical records since 2015 are relevant, they should be obtained. Regarding the need for a VA opinion, the Veteran's case presents several complex medical questions not adequately addressed by the current evidence of record, including the nature of the Veteran's current condition and whether a psychiatric disorder preexisted service. The Veteran testified at his Board hearing that he had no psychiatric problems prior to service other than the basic anxiety that most people feel growing up. Board Hr'g Tr. 2-3. His STRs show that he denied all relevant symptomatology in a February 2013 applicant prescreen and in a February 2013 Report of Medical History at enlistment. A clinical psychiatric evaluation at the entrance examination was likewise negative. The remaining evidence indicates a pre-service psychiatric history far greater in scope than that described at the hearing or reported at entrance by the Veteran, undermining his statements to the Board. The first indication of psychiatric symptomatology appeared during service in October 2013, when he was assessed as having insomnia. A psychiatric evaluation was found to be normal, and it was noted he had no personality-related complaints. In June 2014, he first sought treatment for complaints of depression and stress, which "came to a head" that day after getting yelled at during physical training. It was noted he had a "challenging childhood." Two days later in June 2014, the Veteran was diagnosed with adjustment disorder with depressed mood. At that evaluation, he reported taking psychiatric medication during childhood and having an outpatient counselor in childhood and adolescence with a phase of depression from age 16 to 18 due to family issues. He reported physical and emotional abuse with time spent in foster care during elementary school. He gave a history of being in special education classes from middle to high school. The Veteran continued to seek treatment during the remainder of his service for psychiatric symptoms. He was brought to the emergency room in October 2014 due to an apparent suicide attempt. He reported a similar pre-service history, but added that he had a prior history of suicidal ideation, including having cut himself once five years prior related to his mother's drinking. He described what was noted as "inadequate parenting" and being in special education for emotional and academic needs. He stated that he had had a diagnosis, but did not remember it, and he had "short bouts" of medication, although he did not remember what it was for or the name of the medication. On follow-up the same day, the Veteran reported anxiety since joining service, but worsened depression in the prior three weeks after learning he would be deployed. Then in December 2014, he reported always being an anxious person. Likewise, in January 2015, he reported an onset of difficulties with anxiety early in high school. He stated that he had been in special education classes because of anxiety, and he had attempted college, but the anxiety got the best of him. It was found he endorsed avoidance personality disorder criteria. The diagnosis at that time was personality disorder, NOS with avoidant, dependent, and negativities (passive-aggressive) features. A January 2015 Report of Mental Status Evaluation gave a diagnosis of recent history of adjustment disorder with anxiety (2 discrete episodes) resolved, and personality disorder NOS with avoidant, dependent, and negativities (passive-aggressive) traits. He was not considered mentally disordered, but had a long-standing personality disorder and adjustment disorder. Although the SPRs are not in the file, the STRs indicate that the Veteran was processed for separation around this time due to his condition. At his January 2015 service separation examination, the Veteran endorsed a history of relevant symptomatology, and the clinical evaluation was abnormal due to behavioral health anxiety, depression, panic attacks, and suicide plan. He continued to undergo regular mental health treatment until being separated in August 2015. Of note, in June 2015, he reported that "everything began to go downhill for me" when he was transferred to his current unit. A June 2015 psychological assessment, which included objective testing to include the MMPI-2 and PAI test, resulted in "[d]iagnostic considerations" involving interpersonal relationship problems, Adjustment disorder with Depression or Anxiety, and/or Personality disorder. A further evaluation was conducted in June 2015 for a "second opinion." This resulted in a conclusion that he had a personality disorder. It was explained that with copious amounts of treatment in two different modalities and with different providers, the Veteran had been unable to change his behavior and thinking. It was further noted that he evidenced an enduring pattern of inner experience and behavior that deviated markedly from the expectations of culture (Army), and he had different and dysfunctional cognitive ways of perceiving and interpreting self, other people, and events. It was also found he had problems with affect: in expression, intensity, lability and appropriateness of emotional response, with problems in interpersonal functioning. The Board finds that these STRs contain conflicting information concerning the nature of the Veteran's diagnosis during service and whether a psychiatric condition preexisted service. In connection with his original claim of service connection, the Veteran underwent a VA examination in May 2015. The history he gave of pre-service symptomatology was materially the same as what he reported during service. The examiner reviewed this information, including the STRs, and conducted a clinical evaluation. The examiner diagnosed Unspecified Personality Disorder, but also recorded a diagnosis of "adjustment disorder with depressed mood/personality disorder." The examiner did not explain this diagnosis or provide any other clarity. The post-service, VA medical records show ongoing treatment for symptoms diagnosed in October 2017 as major depressive disorder, recurrent, and anxiety disorder, not otherwise specified (NOS). A December 2017 psychological assessment resulted in diagnoses of Generalized Anxiety Disorder, Persistent Depressive Disorder, r/o Major Depressive Disorder, recurrent. A psychiatric assessment in April 2018 resulted in a diagnosis of major depressive disorder with melancholic features, but a diagnosis of unspecified personality disorder "likely related to developmental trauma?" was also made. Most recently, in June 2019, a VA Psychiatry assessment added a diagnosis of attention deficit hyperactivity disorder (ADHD). These treatment records continued to note his pre-service history. For example a May 2019 VA Psychiatry consultation noted a history of anxiety since prior to age 12, also with "life stories notable for facing many adversities," including "potential for exposure to alcohol while in utero, placement in special education classes for unclear learning trouble/executive dysfunctioning from kindergarten to high school and subsequent difficulties." Overall, the Board finds that this evidence indicates pre-service symptomatology, including anxiety and a suicide attempt, with treatment with medication and outpatient treatment. This history appears of much greater significance than the "basic anxiety" described at the Board hearing. However, no VA examiner has addressed the complex medical questions raised. The severance of service connection was proper to the extent the Veteran is diagnosed with a personality disorder. Personality disorders cannot be granted service connection as a matter of law. 38 C.F.R. § 3.303(c). However, this does not make the grant of service connection clear and unmistakable error for two reasons. First, the service-connected disability was characterized as "personality disorder (adjustment disorder with depressed mood)." The diagnosis of adjustment disorder with depressed mood is given in the STRs as an Axis I diagnosis, so is inconsistent with a personality disorder. See, e.g. 1/9/2015 Report of Mental Status Evaluation. Hence, service connection for that diagnosis would not be precluded as a matter of law. Second, even if the correct diagnosis was a personality disorder, disability that results from a mental disorder that is superimposed upon a personality disorder may be service-connected. 38 C.F.R. § 4.127. To this end, the Veteran specifically reported that his psychiatric symptoms worsened when assigned to a new unit and again when he learned he would be deployed. See, e.g., 10/27/2014 Behavioral Health Clinic; 6/4/2015 Behavioral Health Clinic. It is not clear if this represented a superimposed condition or, alternatively, a worsening of a pre-existing psychiatric condition (other than personality disorder). A VA opinion is needed to address these complex medical questions. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel records. 2. Obtain the Veteran's outstanding VA treatment records since 2015, including records of any treatment obtained through VA's Choice program and all records scanned into his electronic health record, if any. If possible, the Veteran should get these records himself. Any help would be appreciated. 3. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician. (a.) Does the Veteran have a current psychiatric diagnosis other than a personality disorder? The examiner must provide a diagnosis for any conditions found extant. The examiner is asked to provide a response to the following: (b.) Did a psychiatric condition (other than a personality disorder) clearly and unmistakably preexist the Veteran's service? In answering this question the examiner should address the service treatment records (STRs) describing a pre-service history of anxiety, special education classes, and a history of self-harm. (c.) If the examiner finds the condition did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? If the condition underwent any degree of aggravation during service, the examiner should address whether that increase was due to the natural progress of the disease. (For purposes of answering questions (b) and (c), the phrase "clear and unmistakable" should be taken to mean that the answer is undebatable such that any equally qualified medical professional reviewing the same information could not reasonably reach a different conclusion.) (d.) For any diagnosis that either did not clearly and unmistakably preexist service or was not clearly and unmistakably aggravated by service, the examiner must opine whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease, including the complaints of worsening symptoms when he was assigned to a new unit and upon learning of a possible deployment? In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history of pre-service and in-service symptoms. The examiner is asked to explain why his statements make it more or less likely that a current condition started prior to service or is related to service. (Continued on the next page) If indicated, it should be explained whether there is a reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed condition is known to develop, or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.