Citation Nr: 23023977 Decision Date: 04/26/23 Archive Date: 04/26/23 DOCKET NO. 18-19 139A DATE: April 26, 2023 ORDER New and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder. Service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. Evidence received since the 2005 rating decision relates to unestablished facts necessary to substantiate the service connection claim for an acquired psychiatric disorder. 2. The Veteran's pre-existing persistent depressive disorder and antisocial personality disorder were not aggravated by military service; the personality disorder was not superimposed on an acquired psychiatric disorder during service. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2000 to July 2001. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual teleconference hearing before the undersigned Veterans Law Judge in February 2023. A transcript is of record. 1. New and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision makers. 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Id. at 117. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for personality disorder was denied in a September 2005 rating decision for lack of medical evidence showing a current diagnosis of a mental disorder. New and material evidence was not received within a year of notice of the decision. The Veteran did not initiate an appeal of this decision, and it became final. In April 2016, VA received an application to reopen the claim. Upon review of the record, the Board finds that new and material evidence sufficient to reopen the claim has been obtained. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the final denial in September 2005, the evidence associated with the claims file includes private treatment records, VA treatment records, a December 2016 private opinion, an October 2020 buddy statement, a January 2021 VA contract examination report, and a February 2021 VA contract examination report. The December 2016 private opinion and the VA examinations in 2021 include clinical diagnoses of psychiatric disorders and medical opinions. They are new because they were not previously considered by VA, and they also material as they relate to unestablished fact necessary to substantiate the claim. Accordingly, new and material evidence has been received. The claim is reopened. Id. 2. Service connection for an acquired psychiatric disorder is denied. The Veteran contends that his acquired psychiatric disorder is related to service, or was aggravated by service. See February 2023 Board hearing transcript at 2. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Every veteran is presumed to be in sound condition on entry into service, except for those disabilities or disorders noted on examination for entry, or where clear and unmistakable evidence establishes that an injury or disease pre-existed service and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Cases in which the pre-existing condition is noted upon entry into service, and cases in which the pre-existence of the condition must otherwise be established, are to be distinguished. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). When no pre-existing condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service. 370 F3d. at 1345; Horn, 25 Vet. App. at 234; 38 U.S.C. § 1111. On the other hand, if a condition is noted upon entry, the veteran cannot claim direct service connection, but may claim service connection by aggravation and the burden falls on the veteran to establish aggravation. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.306; see Wagner, 370 F.3d at 1096. Turning to the records, in an October 1996 admission note from Erie County Medical Center (ECMC), a private physician noted that that the Veteran attempted to hang himself in the attic last night but was stopped by his mother. The reason for the attempt was because his life was boring. He stated that a day or so ago, he had wanted his mother to come to see the guidance counselor who would not allow him to change class in health or English, and that he was unhappy with his present school situation. He stated that his interests are football. He reported he has been involved in infrequent fights. The clinician noted that it appeared the Veteran had little interactions with other youngsters. On mental status examination, the Veteran's mood was dysphoric; he spoke of suicidality with a degree of detachment; and he showed most emotion when he discussed the suicidality of a friend who shot himself 3-4 years ago. For impression, adjustment disorder with depressed mood was noted. In an October 1996 discharge note about a week later, the physician noted that there was a diminution in suicidality and improvement of mood and affect. He noted that outpatient linkage was established for counseling treatment. In the January 2000 enlistment examination, the Veteran's psychiatric system was marked as normal. In the corresponding report of medical history, the Veteran denied depression or excessive worry, that he has ever been treated for a mental condition, and that he has ever been a patient in a hospital. In an October 2000 service treatment record, the Veteran reported he wanted to "harm himself." The clinician noted the Veteran had history of suicide attempt at the age of 16 and was admitted for 2 weeks, and that he was placed on medication but stopped on his own accord. The impression was adjustment disorder with depressed mood. In an October 2000 service psychiatry record, the Veteran reported continued dysphoria, tearfulness, depression, and intermittent suicidal thoughts. The assessment was adjustment disorder with depressed mood. An October 2000 discharge record noted he was admitted for 4 days. He complained that "I can't adapt." He reported vague suicidal ideation onset during boot camp over missing his daughter. He stated that since about a month ago, he has been in depressed mood, insomnia, mild decrease in appetite, and fleeting suicidal ideation, all in the context of feeling like he cannot adapt to the rules and the military lifestyle. Over the last two weeks, he has seen the division psychiatrist several times for supportive therapy. He stated that thoughts of suicide have increased to the point of planning to hang himself or cut himself. He reported he had a suicide attempt at the age of 16. He stated he was in a psychiatric hospital for 2 weeks, but did not receive follow-up afterwards. The clinician noted diagnoses of adjustment disorder with depressed mood and innate social personality features. A February 2001 VA discharge record noted that the Veteran was admitted voluntarily for depression and suicidal ideations. He stated, "I hate being in the Marines, I feel depressed and have thoughts about killing myself." He stated he entered the Marine Corps in February 2000 and was stationed in North Carolina. He stated he became depressed about a month later, and he missed his mother, brother, and daughter. He stated that 7 months after enlistment, he was admitted because of suicidal ideations. He stated he was absent without leave (AWOL) and drove from North Carolina to New York to see his family. He had thoughts about driving off the road and killing himself while driving, but thoughts of his family prevented him from doing this. His past medical history included being admitted to ECMC in 1996 because of suicidal thoughts, and being admitted to a hospital in North Carolina in 2000 because of suicidal ideations. The clinician noted a diagnosis of mild depression. In a February 2001 emergency room record, the Veteran complained of suicidal thoughts. He reported being depressed with decreased appetite, decreased interest in activities, and increase in insomnia and suicidal thoughts. He desired to get out of the Marines. He stated he was admitted to a psychiatric hospital one week ago in Buffalo, New York, and was discharged around February 9, 2001. The clinician noted a diagnosis of depression with suicidal thoughts. A February 2001 service psychiatry record shows that he was last seen in Oct 2000 for depression and suicidal ideation. The clinician noted that the Veteran had attempted suicide at age 16 and was admitted to psych unit then. He noted that the Veteran fraudulently enlisted into the Marine Corps. He noted that the Veteran was admitted to a VA hospital in Buffalo for about 1 week for suicidal ideation and depression. He noted that the Veteran did not return to division psychiatry or the community counseling for follow up from Oct 2000 to Jan 2001, and has now returned with symptoms of depression and intermittent suicidal feeling. The clinician noted that these problems have continued since age 16. For assessment, the clinician noted borderline personality disorder and fraudulent enlistment. For plan, the clinician noted "adm[inistrative] separation for fraudulent enlistment." In a March 2001 service psychiatry note, the Veteran reported he feels somewhat better, was less depressed, and was sleeping better. He was taking Paxil daily. He still had intermittent suicidal ideation but no intent. He had chronic dysphoria. He has not attended individual treatment. For assessment, the clinician noted "some improvement." In a March 2001 recommendation for administrative separation, the division psychiatrist noted that the Veteran has been evaluated by him and was found to have suicidal feeling since age 16, and was admitted for this in October 2000. He stated the Veteran fraudulently enlisted in the Marine Corps as he withheld this information. He noted that the Veteran manifests a longstanding disorder of character and behavior which is of such severity as to interfere with his ability to function effectively in the military. He noted that individuals with this type of personality disorder are unproductive and often consume considerable command attention and resources. The associated behaviors that render the Veteran unsuitable for further military service include continued suicidal feelings, disciplinary problems, and misconduct. He noted these problems existed prior to enlistment, and will continue beyond military discharge. He strongly recommended that the Veteran be processed expeditiously for an administrative discharge. An April 2001 service psychiatry record noted he was last seen in March 2001, and has been recommended for separation for fraudulent enlistment. The Veteran reported he went to a VA hospital from end of January till February, and was given punishment. He reported he chronically feels dysphoric. He stated discontinued Paxil last week without consultation. He stated he stopped going to individual treatment, and did not want to continue in group therapy. The clinician noted that the Veteran remains symptomatic. His April 2001 separation exam noted abnormal psychiatric system. In the corresponding report of medical history, the Veteran indicated depression, excessive worry, and suicidal thoughts; in the summary section, the examiner noted "borderline personality d/o." After service, in a September 2002 VA record, the Veteran reported he is feeling depressed lately, and that he has apathy. He stated he is concerned because he feels he may have had a sexually-transmitted disease (STD) from a girl he was with last year. The clinician noted that "history of depression in past was suicide attempting, but now has a situational depression related to fear of STD." In a January 2003 record, the Veteran reported he was no longer feeling depressed. For assessment, the clinician noted "depressed better." A July 2004 VA record noted that the Veteran was no longer depressed and was playing football. For assessment, "Depression-resolved" was noted. A May 2008 VA record noted that he had no problems with depression, and was playing football, softball, and was exercising. For assessment, the clinician noted "Depression resolved no longer a problem." Thereafter, his VA and private records are silent for any psychiatric condition until 2016. A July 2016 private primary care provider (PCP) record noted that the Veteran presented for new physical to establish care. He reported he was incarcerated for 7 years. The initial evaluation did not reveal any complaints or diagnosis of a psychiatric condition. In an October 2016 PCP record, the Veteran reported increased episodes of anxiety. The impression was anxiety, and he was prescribed Xanax to be taken daily for severe anxiety/panic. In a December 2016 PCP record, the felt anxiety has been well controlled. The assessment was anxiety. In a December 2016 medical opinion letter, a private mental health counselor noted that, as a treating provider for the Veteran, he has become familiar with his current medical condition as well as his past medical history. He noted that the Veteran's "adjustment disorder with anxiety in my opinion is: … as least as likely as not related to his service-connected disability of adjustment disorder with anxiety." He did not provide a rationale for the opinion. He instead noted that the Veteran "presents with symptoms that are clinically significant as evidenced by marked distress that is out of proportion to the severity or intensity of the stressor taking into account the external context and the cultural factors that might influence symptoms severity and presentation." He noted that the Veteran has "significant impairment in social, occupational or other important areas of functioning." He noted that the Veteran has self-reported nervousness, worrying, and jitteriness. A January 2017 PCP record shows the Veteran continues to take Xanax when needed to decrease anxiety. The assessment was anxiety. A June 2017 PCP record noted he continues to use Xanax sparingly which decreases acute anxiety. The assessment was anxiety. In a March 2017 VA record, the Veteran reported he has been living in his car for the last 2 weeks after having a tense relationship with his mother, whose house he was staying in previously. He reported he was incarcerated for 7 years and was released a little less than a year ago. He reported that he does have anxiety and is prescribed Xanax by his PCP. In an April 2020 letter, W.K. stated that the Veteran was always a clown before he entered service, but ever since discharge from service, he displayed anger issues, was involved in fighting, and has been getting in trouble. The Veteran underwent a VA contract examination for mental disorders in January 2021. The examiner noted a diagnosis of anti-social personality disorder. She noted that the Veteran has a long history of conduct disordered behavior, a pattern of disregard for others, frequent conflictual relationships, low frustration tolerance, inadequate conscience development, and rejection of authority and discipline. She noted that this was noted well before he enlisted in the Marines. The Veteran reported that prior to military, he was often the class clown, often fighting with others, and was kicked out of a number of schools. He struggled getting along with others, often arguing with adults and his peers. He reports that he was admitted to a psychiatric hospital at about age of 17 for depression and suicidal issues, although this was not noted on his entrance exam. He reported that he was first arrested at age 18 for drug charges. He stated he struggled in school and in the community with the management of his behavior and emotional regulation. He stated that during service, he experienced several non-judicial punishments (NJPs) due to his difficulty following commands and managing demands placed upon him. He reported he left Camp Lejeune in February of 2001 and checked himself into a VA hospital in Buffalo due to feelings of depression and suicidal ideation. After service, he stated he was first arrested in 2002 when his friend pulled a gun on him, and he physically assaulted his friend. In 2009, he ended up going to prison for attempted murder after he shot his friend when his friend pulled a gun on him looking for drug money. He reported he spent 7 years at various prisons. Reported that he was arrested most recently in 2019-2020 in Pennsylvania for drug charges. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She noted she has reviewed the VA e-folder. She stated that based on his anecdotal evidence, claims file records, and his long history of behavioral difficulties, challenges with authority, and overall difficulty engaging with others over any lengthy amount of time, the diagnosis of anti-social personality disorder was appropriate. She stated that the Veteran's symptoms and behavioral concerns were noted many years prior to enlisting, with discussions of frequent suspensions from school and prior arrest before entering the military. She stated that his behavioral and emotional lability difficulties continued in the same manner while in service, and he was discharged due to his lack of response to various interventions attempted with him. The Veteran underwent another VA contract examination for mental disorders in February 2021. He was diagnosed with persistent depressive disorder with anxious distress and antisocial personality disorder. The examiner noted the Veteran has chronic depressed mood, loss of pleasure, irritability, thoughts of death, morbid ruminations, and insomnia. The Veteran reported that prior to military service, he had a daughter, struggled socially at times, was arrested for drugs, and fought with others. He reported he was ECMC at age 17 for suicidal thoughts and stayed about one week. He stated that during service, he went AWOL and was in a psychiatric hospital due to depression. He missed his daughter, had trouble interacting the authority figures, and did not get along with his peers and supervisors. He stated he had NJP for the AWOL, and was asked to leave the service due to personality disorder. The examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted that the Veteran had clear and unmistakable evidence of persistent depressive disorder and antisocial personality disorder prior to military service as described in the examination report. The examiner stated that there is evidence to indicate that the Veteran continued to suffer from the mental health disorders during military service, with occasional waxing and waning of symptoms, which is typical of the disorders. She stated that the Veteran's current mental health condition is approximately at the same level of severity as it was prior to military service, and therefore, it is apparent that the current mental disorders were not permanently aggravated by his military service. After careful review, the Board finds that the evidence persuasively weighs against service connection for an acquired disorder. While the Veteran's psychiatric disability was not noted at service entrance, there is clear and unmistakable evidence sufficient to rebut the presumption of soundness. The pre-service October 1996 medical records show a suicidal attempt and a diagnosis of adjustment disorder with depressed mood, with recommendation for counseling. The March 2001 division psychiatrist noted that the Veteran's problems of suicidal thoughts, longstanding disorder of character and behavior, and personality disorder existed prior to enlistment. The January 2021 examiner noted that anti-social personality disorder symptoms and behavioral concerns were noted many years prior to enlisting, and the February 2021 examiner noted that the Veteran had persistent depressive disorder and antisocial personality disorder prior to service. Thus, the medical evidence demonstrates that the Veteran's depressive disorder and personality disorder pre-existed his active duty service. The February 2021 examiner opined that the Veteran continued to suffer from the pre-existing persistent depressive disorder with anxious distress and antisocial personality disorder during service approximately at the same level of severity as it was prior to military service, and was not aggravated by military service. The examiner's opinion is probative as it is shown to have been based on a review of the Veteran's record and are accompanied by sufficient explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). On the other hand, the December 2016 private opinion is not probative as the clinician did not provide any rationale for the opinion. Consequently, the Board gives more probative weight to the February 2021 examiner's opinion. The Board also notes that service connection cannot be granted for a personality disorder. Congenital or developmental defects, such as personality disorders, automatically rebut the presumption of soundness and are considered to have pre-existed service. 38 C.F.R. § 3.303(c); Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality (to include personality disorder), by superimposed disease or injury. See VAOPGCPREC 82-90, 55 Fed. Reg. 45, 711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245(1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). Here, the February 2021 opinion indicated that the Veteran's personality disorder did not increase in severity while in service. Further, there is no competent evidence of additional disability due to in-service aggravation of the personality disorder by superimposed disease or injury during service. The Veteran's representative asserted at the Board hearing that the VA examiners did not appear to consider the Veteran's and W.K.'s statements. The Board disagrees. The VA examiners did indicate in the examination reports that they have reviewed the claims file. Further, although W.K. stated that the Veteran did not cause any trouble prior to enlistment, the records show otherwise. The Veteran reported at the VA exams that, prior to service, he fought with others, was kicked out of a number of schools, was arrested at age of 18 for drug charges, and struggled in the community with the management of his behavior and emotional regulation. The Veteran is not competent to provide a nexus opinion regarding whether his current psychiatric disorder is related to service. The issue is medically complex, as it requires knowledge and expertise in psychiatry or psychology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiners' opinions. Taken together, the opinions establish that the Veteran had persistent depressive disorder and antisocial personality disorder prior to service, and that they were not aggravated by his military service, and that the personality disorder was not superimposed upon an acquired psychiatric disorder during service. In sum, the competent, credible, and persuasive evidence does not support the claim. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence persuasively weighs against the Veteran's claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (Continued on the next page) ? Service connection for an acquired psychiatric disorder is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, Attorney Advisor 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.