Citation Nr: 18131277
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 16-14 568
DATE:	August 31, 2018
ORDER
New and material evidence having been received, the appeal to reopen service connection for an acquired psychiatric disorder, to include depressive disorder, is granted.
Service connection for an acquired psychiatric disorder, to include personality disorder, depressive disorder, adjustment disorder, bipolar disorder, and posttraumatic stress disorder (PTSD) is denied.
FINDINGS OF FACT
1. In an unappealed August 2009 rating decision, the Regional Office (RO) denied service connection for depressive disorder on the basis that the evidence did not show a current disability and a nexus to service; evidence received since the August 2009 rating decision relates to the unestablished facts of a current disability and a nexus to service, which are necessary to substantiate a claim for service connection.
2. The Veteran was diagnosed with personality disorder during service; the Veteran’s personality disorder was not subject to superimposed disease or injury during service.
3. The Veteran is currently diagnosed with an acquired psychiatric disorder, to include personality disorder, depressive disorder, adjustment disorder, and bipolar disorder; the Veteran does not have a current diagnosis for PTSD.
4. The current acquired psychiatric disorder manifested many years after service separation and is not causally or etiologically related to service.
CONCLUSIONS OF LAW
1. The August 2009 rating decision denying service connection for an acquired psychiatric disorder, to include depressive disorder, became final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.
2. Evidence received since the August 2009 rating decision is new and material to reopen service connection for an acquired psychiatric disorder.  38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156.
3. The criteria for service connection for an acquired psychiatric disorder, to include personality disorder, depressive disorder, adjustment disorder, bipolar disorder, and PTSD, have not been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.304, 4.127.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran, who is the appellant, served on active duty from January 2002 to September 2002.
Reopening service connection for an acquired psychiatric disorder
Finally decided claims cannot be reopened in the absence of new and material evidence.  38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)).  Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence.  38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156.  When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new” and “material.”  See Smith v. West, 12 Vet. App. 312 (1999).
New evidence means existing evidence not previously submitted to agency decision makers.  38 C.F.R. § 3.156(a).  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.  Id.  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.  Id.
The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.”  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.
An August 2009 rating decision denied service connection for depressive disorder on the basis that the evidence did not show a current disability and a nexus to service.  Because the Veteran did not submit a Notice of Disagreement, and no additional evidence was received within one year of the notice of the rating decision, the August 2009 rating decision became final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103.
Since the August 2009 rating decision (final disallowance), additional evidence has been received in the form of VA treatment records, private treatment records, VA examination report, lay statements, and the Veteran’s November 2016 Board testimony, which evidence is new because they have not been previously submitted.  Evidence received since the August 2009 rating decision includes VA treatment records indicating current psychiatric diagnoses and a March 2016 VA examination report that contains the VA examiner’s opinion relating to the claimed PTSD to active service.  Such evidence relates to the unestablished facts of a current disability and nexus to service.  Based on the foregoing, the Board finds that the additional evidence received is new and material to reopen service connection for an acquired psychiatric disorder.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).
Service connection for an acquired psychiatric disorder, to include personality disorder, depressive disorder, adjustment disorder, bipolar disorder, and PTSD
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability.  
With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency).
The Veteran asserts that a current acquired psychiatric disorder is the result of a series of incidents and conflicts with other service members during active service.  The Veteran asserts that he did not have any psychiatric or behavioral problems prior to service and began experiencing such problems during service due to unfair treatment by other service members.  See November 2016 Board hearing transcript.  The Veteran also contends that he developed PTSD when another service member assaulted him and when he was urinated on by yet another service member.  See March 2015 Statement in Support of Claim for PTSD.  
Initially, the Board finds that the Veteran is currently diagnosed with personality disorder, depressive disorder, adjustment disorder, and bipolar disorder.  See January 2010 VA treatment record; April 2013 VA treatment record; May 2013 VA treatment record; August 2014 VA treatment record.  The Board further finds that the Veteran is not currently diagnosed with PTSD; on the contrary, VA treatment records have repeatedly found that the Veteran does not meet the diagnosis criteria for PTSD.  See October 2009 VA treatment record; January 2010 VA treatment record; June 2015 VA treatment record; January 2016 VA treatment record; March 2016 VA examination report.
After review of all the lay and medical evidence of record, the Board finds that the weight of the lay and medical evidence of record shows the Veteran was diagnosed with personality disorder during service and did not sustain a superimposed disease or injury during service.  Additionally, the weight of the lay and medical evidence of record demonstrates that the currently diagnosed acquired psychiatric disorders had their onset many years following service separation and are not etiologically related to service.
Service treatment records reflect the Veteran was seen for mental health evaluation several times during active service following incidents involving conflicts with other service members, at times with the Veteran threatening to jump off the USS George Washington.  The Veteran had also been written up multiple times for being disrespectful.  See June 2002 service treatment records; September 2002 service treatment records.  June 2002 and September 2002 service treatment records reflect the Veteran reported that, prior to military service, he was suspended about 20 times from school for being disrespectful and for fighting.  A September 2002 service psychological evaluation recounts the Veteran’s conflicts with other service members and reflects the Veteran was diagnosed with personality disorder; the September 2002 service examiner assessed the Veteran was not experiencing any significant psychiatric symptoms but had a long history of disrespect for authority.  The examiner assessed the Veteran to be at risk to do harm to himself or others.  The Veteran was administratively separated from service on this basis.
The above service treatment records reflect that the Veteran’s in-service behavior, characterized as a pattern of anti-authority behavior and misconduct, was a manifestation of a personality disorder.  Regarding the personality disorder diagnosed during service, the Board notes that such disorders are by definition preexisting disorders.  A personality disorder is considered a congenital or developmental defect and is not subject to service connection under 38 C.F.R. § 3.303(c) (see also 38 C.F.R. §§ 4.9, 4.127) in the absence of superimposed disease or injury.  See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; VAOPGCPREC 11-99.
During the November 2016 Board hearing, the Veteran testified that during service he was advised to falsely report to service examiners that he had behavioral issues since childhood, including being suspended from school multiple times, in order to obtain a more favorable character of discharge.  The Veteran testified that he did not have any psychological or behavior problems prior to service, and such problems only arose during, and as a result of, active service.  However, contemporaneous post-service treatment records show the Veteran similarly reported a history of pre-service behavior problems, including being suspended from school multiple times in childhood.  Such post-service reporting of pre-service behavioral problems is contrary to the Veteran’s November 2016 Board testimony denying he had behavioral problems prior to service.  See e.g. October 2009 VA treatment records.  The Board finds the Veteran’s testimony to be outweighed by his other statements of record, as well as the medical evidence of record, so as not to be credible.  
On the question of the Veteran’s credibility, it does not aid the Veteran’s current credibility when he now proffers non-credible testimony denying pre-service behavioral problems because, were such history to be believed, it necessarily is an admission that during service the Veteran was willing to misrepresent his history of psychological and behavioral problems to military authorities in order to obtain a good discharge.  Such proffer of a story reflects the Veteran is willing to misrepresent facts to authorities when it is to his advantage.  As both histories cannot be true, the Veteran has either misrepresented his pre-service psychological and behavioral history to service examiners and service personnel or has misrepresented the history to VA and the Board.  The weight of the lay and medical evidence in this case shows that the hearing testimony denying preexisting psychological and behavioral problems is the history that is outweighed by other evidence and is not credible.   
The Veteran’s personality disorder is by definition a preexisting disorder under 38 C.F.R. § 4.127, and is not subject to service connection in the absence of superimposed disease or injury.  On the question of whether the personality disorder diagnosed during service was subject to a superimposed psychiatric disease or injury, the Board finds that the weight of the lay and medical evidence demonstrates that the Veteran did not sustain a superimposed psychiatric disease or injury during service.  As noted above, the Veteran alleges that two stressful events occurred during service.  During the November 2016 Board hearing, the Veteran testified that on one occasion another service member came up from behind and placed the Veteran in choke hold, which he perceived as an attempt to kill him.  The Veteran testified that in another incident a service member urinated on the Veteran while he was sleeping, and this was a very humiliating experience.
The Veteran underwent a VA examination in March 2016.  During the March 2016 VA examination, the Veteran reported the above incidents as in-service stressor events.  The March 2016 VA examination report shows the Veteran was again diagnosed with unspecified personality disorder, and contains the VA examiner’s opinion that the current personality disorder is not the result of military service because symptoms of personality disorder are considered long-standing, pervasive, with onset prior to military service.  Further, the claimed stressor events were assessed to be inadequate to support a diagnosis of PTSD.  
Because the weight of the evidence shows no psychiatric disease or injury during active service, stressful event during service, symptoms of a psychiatric disorder during service, a superimposed disease or injury during service is not shown; therefore, service connection for a personality disorder must be denied.
Post-service treatment records show the Veteran’s current acquired psychiatric disorder (that is not personality disorder) did not have its onset until several years following service separation in 2008.  An October 2009 VA treatment record indicates the Veteran was first treated for depression in 2008 following a physical altercation with a girlfriend.  The evidence of record does not contain any competent medical opinion relating the currently diagnosed acquired psychiatric disorder of depression (that is not the personality disorder) to service.
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The weight of the evidence demonstrates that, other than symptoms related to the personality disorder diagnosed during service, there was no psychiatric injury, stressful event, psychiatric disease, or symptoms of a psychiatric disorder that manifested in service; no symptoms of a psychiatric disorder manifested until several years after service in 2008; and there is no relationship between the Veteran’s current psychiatric disorder of depression and service.  In consideration thereof, the Board finds that the preponderance of the evidence is against the claim, and service connection for an acquired psychiatric disorder, to include personality disorder, depressive disorder, adjustment disorder, bipolar disorder, and PTSD must be denied.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
 
J. PARKER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Choi, Associate Counsel 

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