Veteranclaims’s Blog

May 15, 2012

Morris v. Shinseki, No. 2011-7061 (Decided: May 15, 2012), Federal Circuit, Presumption of Soundness Does Not Apply to Personality Disorders

Excerpt from decision below:
“In sum, according to the express language of 38 C.F.R. § 3.303(c), personality disorders are not diseases or injuries within the meaning of § 1110 and thus are not compensable.
Therefore, the Board and the Veterans Court did not err in holding the presumption of soundness inapplicable to Mr. Morris’s case. The 1988 Board Decision therefore was not tainted by CUE. As we hold there was no CUE in the 1988 Board Decision, we need not address the government’s alternative argument that, assuming there was CUE, the error was not outcome determinative.
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United States Court of Appeals
for the Federal Circuit
__________________________
JACK D. MORRIS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7061
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-0017, Judge Robert N.
Davis.
_________________________
Decided: May 15, 2012
_________________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
SCOTT D. AUSTIN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Director,
and MARTIN F. HOCKEY, JR., Assistant Director. Of
counsel on the brief were MICHAEL J. TIMINSKI, Deputy
MORRIS v. DVA 2
Assistant General Counsel, and DANA RAFFAELLI, Attorney,
United States Department of Veterans, of Washington,
DC.
__________________________
Before DYK, SCHALL, and MOORE, Circuit Judges.
Opinion for the court filed by Circuit Judge SCHALL.
Concurring opinion filed by Circuit Judge DYK.
SCHALL, Circuit Judge.
Jack D. Morris appeals the October 15, 2010 decision
of the United States Court of Appeals for Veterans Claims
(“Veterans Court”) in Morris v. Shinseki, No. 09-0017,
2010 WL 4068749 (Vet. App. Oct. 15, 2010). In its decision,
the Veterans Court affirmed the September 12, 2008
decision of the Board of Veterans’ Appeals (“Board”) in In
re Morris, No. 04-38 491 (Bd. Vet. App. Sept. 12, 2008)
(“2008 Board Decision”). In that decision the Board found
no clear and unmistakable error (“CUE”) in its February
9, 1988 decision denying Mr. Morris’s claim for service
connection for a psychiatric disorder. See In re Morris,
No. 87-11 982 (Bd. Vet. App. Feb. 9, 1988) (“1988 Board
Decision”). We affirm.
BACKGROUND
I.
Mr. Morris served on active duty in the United States
Army from July 31, 1964, to October 6, 1964. 1988 Board
Decision at 2. His entrance examination revealed no
psychiatric abnormality. Subsequently, in mid-
September of 1964, he underwent an examination in
connection with his separation from the service. That
examination also revealed no psychiatric abnormality. At
the time, Mr. Morris did, however, complain of experiencing
“nervous trouble and other symptoms.” Id. Mr.
MORRIS v. DVA 3
Morris’s clinical record cover sheet dated October 6, 1964,
sets forth the following diagnosis: “Passive aggressive
reaction, chronic, moderate, unchanged, manifested by
periods of anxiety and inability to express anger. Stress:
Minimal. Predisposition: Moderate, unstable family.
Disability: Moderate.”
On January 21, 1966, Mr. Morris filed with the Department
of Veterans Affairs (“VA”) a claim for disability
compensation for a psychiatric disorder. In support of his
claim, he stated that, while in basic training, he had
suffered mental and physical abuse from his platoon
sergeant, which had caused him to experience a nervous
breakdown. In a May 5, 1966 rating decision, the VA’s
Regional Office (“RO”) denied the claim. Noting that the
file did not reflect any record of treatment for a nervous
condition during service, the rating specialists concluded
that Mr. Morris’s condition was in a chronic stage and had
existed prior to service. The RO thus determined that
there was no indication that Mr. Morris’s condition was
incurred in or aggravated during service.
II.
On January 31, 1986, Mr. Morris sought to reopen his
claim for a psychiatric disorder by providing lay statements
and a statement from a therapist. After the RO
concluded that the additional evidence did not constitute
new and material evidence sufficient to warrant reopening
of the claim, Mr. Morris appealed to the Board.
In its February 9, 1988 decision, the Board determined
that, contrary to what the RO had found, Mr.
Morris had come forward with new and material evidence
in support of his claim. 1988 Board Decision at 5. However,
after reviewing the evidence, the Board concluded
that the evidence did not show that Mr. Morris’s “psychiatric
symptoms” were “due to other than a personality
MORRIS v. DVA 4
disorder.” Id. “Under 38 C.F.R. § 303(c),” the Board
noted, “a personality disorder is not a disease within the
meaning of applicable legislation providing for compensation
benefits.” Id. at 4. Based upon the VA’s regulation,
the Board therefore denied Mr. Morris’s claim of service
connection for a psychiatric disorder. Id. at 6.1
On February 23, 1988, the VA considered medical
evidence from the University of South Florida psychology
department. Mr. Morris had submitted this evidence on
May 5, 1987, while his appeal before the Board was
1 The version of 38 C.F.R. § 3.303(c) in effect at the
time of the 1988 Board Decision is identical to the present
version of the regulation. Compare 38 C.F.R. § 3.303(c)
(1987) with 38 C.F.R. § 3.303(c) (2011). Pertinent to this
case, § 3.303(c) provides in relevant part as follows:
Preservice disabilities noted in service: There
are medical principles so universally recognized
as to constitute fact (clear and unmistakable
proof), and when in accordance with
these principles existence of a disability prior
to service is established, no additional or confirmatory
evidence is necessary. . . . In the
field of mental disorders, personality disorders
which are characterized by developmental
defects or pathological trends in the
personality structure manifested by a lifelong
pattern of action or behavior, chronic
psychoneurosis of long duration or other psychiatric
symptomatology shown to have existed
prior to service with the same
manifestations during service, which were
the basis of the service diagnosis, will be accepted
as showing preservice origin. Congenital
or developmental defects, refractive
error of the eye, personality disorders and
mental deficiency as such are not diseases or
injuries within the meaning of applicable legislation.
MORRIS v. DVA 5
pending. Following a further denial of his claim, Mr.
Morris presented additional medical evidence to the VA.
This evidence indicated that Mr. Morris had been diagnosed
with schizophrenia and included an opinion from a
VA physician that the schizophrenia had its onset during
service. On June 14, 1990, the Board again denied Mr.
Morris’s claim of service connection for a psychiatric
disorder, concluding that the evidence still was not sufficient
to show that the previous diagnosis of a personality
disorder was in error. In re Morris, No. 90-02 895, slip op.
at 8 (Bd. Vet. App. June 4, 1990). Mr. Morris then appealed
to the Veterans Court.
In the wake of a remand from the Veterans Court in
March of 1992, the Board, in May of 1992, received the
opinion of a psychiatrist who was an examiner for the
Board. Based upon that opinion, the December 1992
opinion of an independent medical examiner, as well as
additional evidence before it, the Board reopened Mr.
Morris’s claim on February 3, 1993 and concluded that
“the preponderance of the old and new evidence, considered
together, supports the claim for service connection
for schizophrenia.” In re Morris, No. 90-02 895, slip op. at
4 (Bd. Vet. App. Feb. 3, 1993). At the same time, however,
the Board determined that its February 1988 decision
“was well supported by the evidence then of record
and in accordance with all applicable legal criteria” and
that the decision was thus final. Id., slip op. at 9. Subsequently,
in April of 1993, the RO awarded service connection
for schizophrenia effective from May 5, 1987, and
assigned a 100 percent rating from that date. The RO
assigned May 5, 1987, as the effective date because that
was when the VA received certain additional evidence
from Mr. Morris. Thereafter, in 1996, the Board denied
Mr. Morris’s claim that the 1966 RO decision contained
CUE and that the award of service connection therefore
MORRIS v. DVA 6
should be made retroactive to the date of his 1966 claim
for benefits. In re Morris, No. 94-06 408 (Bd. Vet. App.
Apr. 19, 1996).
III.
In September of 2004, Mr. Morris filed a motion with
the Board in which he argued that the 1988 Board Decision
was tainted by CUE because the Board failed to
correctly apply 38 U.S.C. §§ 105(a), 1110, and 1111.
According to Mr. Morris, the Board improperly relied
upon the existence in his service medical records of a
“non-compensable” psychiatric condition (personality
disorder) as a basis for denying disability compensation.
Instead, he urged, the Board should have relied upon the
presumption of service connection under § 105(a) and the
presumption of sound condition under § 1111 to award
him compensation under § 1110 for a psychiatric disorder.
2008 Board Decision at 4-5.
In its September 12, 2008 decision, the Board denied
Mr. Morris’s CUE claim. The Board began by noting the
claim that Mr. Morris had presented in 1988. The Board
pointed out that, at that time, Mr. Morris contended that,
during active duty, he developed, and was treated for, an
acquired psychiatric disability; that he was in sound
condition when he entered the service; that he was harassed
by a drill sergeant, which resulted in his development
of a nervous disorder; and that, following separation
from the service, his psychiatric problems continued.
2008 Board Decision at 9. Continuing, the Board noted
that the 1988 Board had determined that the initial
service medical records on file showed that any psychiatric
symptoms present during service were acute and
transitory and attributed to a personality disorder. Id.
The 1988 Board also had determined, it was noted, that a
chronic acquired psychiatric disorder was not indicated
MORRIS v. DVA 7
during service or on an examination for separation from
active duty. Id. In addition, the Board pointed out, the
1988 Board had determined that, although more recently
developed medical records referred to an investigation of a
“maltreatment incident,” those records did not demonstrate
the presence of an acquired psychiatric disorder
during service but, instead, psychiatric symptoms associated
with a personality disorder, which for short periods
resulted in symptoms such as anxiety and depression. Id.
Finally, the Board set forth the 1988 Board’s ultimate
conclusions: (1) that a chronic acquired psychiatric disorder
was not incurred or aggravated in service; (2) that a
personality disorder is a congenital or developmental
defect and not a disease within the meaning of the applicable
regulation, 38 C.F.R. § 3.303(c); and (3) that evidence
received subsequent to the May 1966 rating
decision, which was not appealed, did not present a new
factual basis warranting the grant of service connection
for a psychiatric disorder. Id. at 10.
Turning to Mr. Morris’s contentions, the Board first
rejected the argument that, under 38 U.S.C. § 105(a) a
veteran is entitled to a statutory presumption of service
connection for an alleged disability. The Board reasoned
that § 105(a) pertains to line of duty and misconduct
considerations, neither of which was on appeal or before
the Board in 1988.2 2008 Board Decision at 11. Section
2 38 U.S.C. § 105(a) states in relevant part:
An injury or disease incurred during active
military, naval, or air service will be deemed
to have been incurred in line of duty and not
the result of the veteran’s own misconduct
when the person on whose account benefits
are claimed was, at the time the injury was
suffered or disease contracted, in active military,
naval, or air service, whether on active
MORRIS v. DVA 8
105(a), the Board stated, “does not serve to establish a
presumption that any claimed disease or injury in service
is entitled to service connection, because a claimant
makes a claim for service connection.” Id.
The Board viewed Mr. Morris’s main argument to be
that the 1988 Board had failed to afford him the presumption
of sound condition under 38 U.S.C. § 1111, which, he
claimed, would have entitled him to compensation under
38 U.S.C. § 1110 for a psychiatric disorder.3 Addressing
this argument, the Board stated that “[t]he veteran was
afforded the presumption of soundness with respect to the
issue of service connection for an acquired psychiatric
disorder in the February 1988 Board decision.” 2008
Board Decision at 11. After making this statement, the
Board observed that the 1988 Board had noted that Mr.
Morris’s entrance psychiatric examination was normal
duty or on authorized leave, unless such injury
or disease was a result of the person’s
own willful misconduct or abuse of alcohol or
drugs.
3 38 U.S.C. § 1110 provides that a veteran shall be
compensated for a disability arising from an injury or
disease incurred or aggravated while the veteran was on
active duty. 38 U.S.C. § 1111 supplements § 1110 and
states:
For the purposes of section 1110 of this title,
every veteran shall be taken to have been in
sound condition when examined, accepted,
and enrolled for service, except as to defects,
infirmities, or disorders noted at the time of
the examination, acceptance, and enrollment,
or where clear and unmistakable evidence
demonstrates that the injury or
disease existed before acceptance and enrollment
and was not aggravated by such
service.
MORRIS v. DVA 9
and that Mr. Morris’s in-service symptoms were associated
with a personality disorder and were not due to a
chronic acquired psychiatric disability. Id. The Board
stated that the 1988 denial of service connection “was not
made on the basis that the veteran had a preexisting
defect, infirmity, or disorder which was not aggravated
during service. Rather, the denial of service connection
for an acquired psychiatric disability was made on the
basis that an acquired psychiatric disability was not
present during service and was not incurred in service.”
Id. at 12. Putting the matter another way, the Board
reasoned that “the denial of service connection for a
chronic acquired psychiatric disability was based on a
determination that the veteran did not have this disability
during service and any post-service symptoms did not
establish that a chronic acquired psychiatric disability
originated during service. The . . . denial was not on the
basis that an acquired psychiatric disability preexisted
service and was not aggravate therein.” Id. Finally, the
Board remarked that, although Mr. Morris was arguing
that the 1988 Board had failed to afford him § 1111’s
presumption of soundness, what he really was complaining
about was the 1988 Board’s weighing of the evidence
and its finding that, during his period in service, he had
suffered from a personality disorder, which by regulation
is not compensable. Id. at 13. See 38 C.F.R. § 3.303(c).
Based upon its analysis, the Board denied Mr. Morris’s
motion for revision of the 1988 Board decision on the basis
of CUE. 2008 Board Decision at 14.
IV.
Mr. Morris appealed the Board’s denial of his motion
to the Veterans Court. Before the Veterans Court, he
pressed the same arguments that he had advanced before
the Board. He again argued that the 1988 Board had
failed to apply correctly 38 U.S.C. §§ 105(a), 1110, and
MORRIS v. DVA 10
1111. The Veterans Court rejected Mr. Morris’s arguments.
Noting that Mr. Morris had offered no evidence
that the 1988 Board incorrectly considered his condition a
personality disorder, the court stated that it previously
had held that § 1111 does not apply to personality disorders
in view of the language of 38 C.F.R. § 3.303(c).
Morris v. Shinseki, No. 09-0017, 2010 WL 4068749 at *2
(Vet. App. Oct. 15, 2010) (citing Winn v. Brown, 8 Vet.
App. 510, 516 (1996) (“A personality disorder . . . is not
the type of disease- or injury related-defect to which the
presumption of soundness can apply.”)) The court therefore
affirmed the Board’s September 12, 2008 decision
that found no CUE in its 1988 decision. This appeal
followed.
DISCUSSION
I.
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292(a); see
Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002)
(en banc), superseded on other grounds by Veterans Benefits
Act of 2002, Pub. L. No. 107-330, § 402(a), 116 Stat.
2820, 2832. We have jurisdiction to review a decision of
the Veterans Court “with respect to the validity of a
decision of the [Veterans] Court on a rule of law or of any
statute or regulation . . . or any interpretation thereof
(other than a determination as to a factual matter) that
was relied on by the [Veterans Court] in making the
decision. 38 U.S.C. § 7292(a). Our authority extends to
deciding all relevant questions of law, and we can set
aside a regulation or an interpretation of a regulation
relied upon by the Veterans Court when we find it to be
“arbitrary, capricious, and an abuse of discretion, or
otherwise not in accordance with law; contrary to constitutional
right, power, privilege, or immunity; in excess of
MORRIS v. DVA 11
statutory jurisdiction, authority, or limitations; or in
violation of a statutory right; or without observance of
procedure required by law.” Jones v. West, 194 F.3d 1345,
1350 (Fed. Cir. 1999); see 38 U.S.C. § 7292(d)(1). Our
authority, however, does not extend to the ability to
review factual determinations or the application of a law
or regulation to a particular set of facts unless a constitutional
issue is presented. 38 U.S.C. § 7292(d)(2). As set
forth below, the sole issue in this case is whether the
Veterans Court, in affirming the 2008 Board Decision,
erred in its interpretation of the pertinent regulation, 38
C.F.R. § 3.303(c). We therefore agree with the parties
that we have jurisdiction over this appeal.
II.
In order to revise a final VA decision on account of
CUE, the following must be demonstrated:
1) Either the correct facts, as they were known at
the time, were not before the adjudicator or the
statutory or regulatory provisions extant at the
time were incorrectly applied,
2) The error must be “undebatable” and the sort
“which, had it not been made, would have manifestly
changed the outcome at the time it was
made,” and
3) A determination that there was CUE must be
based on the record and the law that existed at
the time of the prior adjudication in question.
Willsey v. Peake, 535 F.3d 1368, 1371 (Fed. Cir. 2008)
(citing Russell v. Principi, 3. Vet. App. 310, 313-14
(1992)).
Mr. Morris hinges his CUE claim on the argument
that, in the 1988 Board Decision, the Board incorrectly
MORRIS v. DVA 12
applied 38 C.F.R. § 3.303(c) and that the 2008 Board
Decision and the decision of the Veterans Court now on
appeal continued the error. His argument essentially is
as follows: It is true that under § 3.303(c) a disability
attributable to a personality disorder is not compensable.
Reply Br. at 2. However, under 38 U.S.C. § 1111, a veteran
claiming disability compensation under 38 U.S.C.
§ 1110 is entitled to a presumption that he was in sound
condition when he entered service.4 Thus, even when the
record contains an in-service diagnosis of a personality
disorder, in order to have that diagnosis defeat a claim for
compensation under § 1110, the VA must rebut the presumption
of sound condition under § 1111. According to
Mr. Morris, if, as here, “no pre-service disability was
noted, . . . the VA must in accordance with the presumption
of sound condition show by clear and unmistakable
evidence that the condition noted during service was a
pre-service disability.” Claimant’s Br. at 12. That this
requirement exists, Mr. Morris contends, is supported by
the language of § 3.303(c), id. at 10-14, and the interpretation
of § 3.303(c) set forth in two VA General Counsel
opinions, id. at 14-19. Thus, Mr. Morris argues, the
Board erred when it interpreted § 3.303(c) to mean that
the in-service diagnosis of a personality disorder in and of
itself was enough to defeat Mr. Morris’s claim of a psychiatric
disorder. Rather, the VA should have been required
to demonstrate affirmatively that the personality disorder
existed prior to service. In short, we understand Mr.
Morris to be saying the following: I recognize that a
personality disorder is not a compensable disability. I
4 The versions of 38 U.S.C. §§ 1110 and 1111 in effect
at the time of the 1988 Board Decision are identical to
the present versions of the statutes. Compare 38 U.S.C.
§ 310 (1982) with 38 U.S.C. § 1110 (2010) and 38 U.S.C.
§ 311 (1982) with 38 U.S.C. § 1111 (2010).
MORRIS v. DVA 13
also recognize that, in my case, the record shows an inservice
diagnosis of a personality disorder. However,
before that diagnosis could serve to disqualify me from
compensation, the VA should have been required to
overcome § 1111’s presumption of soundness by demonstrating
that I had a personality disorder when I entered
the service.
The government responds that the Veterans Court did
not err in affirming the 2008 Board Decision. The government
starts from the premise that, in order to be
entitled to compensation under 38 U.S.C. § 1110, a veteran
must demonstrate that he or she presently suffers
from a disability, that there was in-service incurrence or
aggravation of a disease or injury, and that there is a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service.
Resp’t’s Br. at 14. Next, relying upon our decision in
Terry v. Principi, 340 F.3d. 1378, 1382 (Fed. Cir. 2003),
the government contends that, if a disability cannot be
attributed to an injury or disease incurred or aggravated
in the line of duty, the disability is not compensable. In
that regard, the government points out that § 3.303(c)
states that a personality disorder is not a disease or
injury within the meaning of § 1110. Resp’t’s Br. at 14
(citing Terry, 340 F.3d at 1382). “Accordingly,” the government
reasons, “pursuant to Terry, any disability
attributable to personality disorders is not compensable.”
Id. In other words, “because a personality disorder is not
a disease or injury, the condition cannot form the basis for
an award of disability compensation.” Id. at 16. The
government thus takes the position that the Veterans
Court correctly held that the Board did not err in not
applying the presumption of soundness to Mr. Morris’s
claim. The reason is that because Mr. Morris’s personality
disorder was not a compensable injury or disease, it
MORRIS v. DVA 14
could not be service connected. Therefore, § 1111’s presumption
of soundness did not apply in his case. Id. at
17. At the same time, the government argues that neither
of the two VA General Counsel opinions upon which
Mr. Morris relies supports his case. Id. at 20-22. Finally,
the government makes the alternative argument that,
even if the Veterans Court erred in its conclusion that
§ 3.303(c) renders § 1111’s presumption of soundness
inapplicable in this case, CUE did not occur because the
purported error was not outcome determinative. Id. at
23-24.
III.
Section 1110 provides compensation to a veteran for a
disability resulting from an injury or disease incurred or
aggravated during active duty. To demonstrate entitlement
to compensation under § 1110, a veteran must
establish: “(1) the existence of a present disability; (2) inservice
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.” Shedden v. Principi, 381 F.3d 1163, 1167
(Fed. Cir. 2004). “[I]f a disability cannot be attributed to
an ‘injury’ or ‘disease’ incurred or aggravated in the line of
duty, the disability is not compensable.” Terry, 340 F.3d
at 1382.
We have previously observed that there is a “gap left
by the statute with respect to the question of what kinds
of conditions qualify as injuries or diseases for purposes of
entitlement to veterans’ benefits.” Id. at 1383. The VA,
however, has addressed this issue. Pursuant to its authority
under 38 U.S.C. § 501 “to prescribe all rules and
regulations which are necessary to carry out the laws
administered by the [VA],” the VA promulgated the
MORRIS v. DVA 15
regulation set forth at 38 C.F.R. § 3.303(c). As noted
above, the regulation provides in relevant part as follows:
Preservice disabilities noted in service: There are
medical principles so universally recognized as to
constitute fact (clear and unmistakable proof), and
when in accordance with these principles existence
of a disability prior to service is established,
no additional or confirmatory evidence is necessary.
. . . In the field of mental disorders, personality
disorders which are characterized by
developmental defects or pathological trends in
the personality structure manifested by a lifelong
pattern of action or behavior, chronic psychoneurosis
of long duration or other psychiatric
symptomatology shown to have existed prior to
service with the same manifestations during service,
which were the basis of the service diagnosis,
will be accepted as showing preservice origin.
Congenital or developmental defects, refractive
error of the eye, personality disorders and mental
deficiency as such are not diseases or injuries
within the meaning of applicable legislation.
In Terry, we upheld the validity of § 3.303(c) as consistent
with the § 1110. 340 F.3d at 1381-86.
Turning to the present case, under the plain language
of § 3.303(c), a personality disorder is not a disease or
injury within the meaning of § 1110, a point upon which
both the government and Mr. Morris agree. See Reply Br.
at 2; Resp’t’s Br. at 14; see also Conley v. Peake, 543 F.3d
1301, 1305 (Fed. Cir. 2008) (“Under 38 C.F.R. § 3.303(c),
. . . personality disorders are considered ‘[c]ongenital or
developmental defects’ for which service connection cannot
be granted because they ‘are not diseases or injuries
within the meaning of the applicable legislation.’”). See
MORRIS v. DVA 16
also 38 C.F.R. § 4.9 (“[P]ersonality disorder and mental
deficiency are not diseases or injuries in the meaning of
the applicable legislation for disability compensation
purposes.”); § 4.127 (“Mental retardation and personality
disorders are not diseases or injuries for compensation
purposes . . . .”).5 Thus, the personality disorder which
the 1988 Board found Mr. Morris had fell outside the
scope of the applicable legislation and therefore was not
compensable. The Board did not err in denying compensation
for the disorder.
As seen, Mr. Morris tries to avoid the bar of § 3.303(c)
by arguing that the 1988 Board erred by failing to grant
him the presumption of soundness. The effort fails,
however. Section 1111 grants veterans a statutory presumption
of soundness only “for the purposes of section
1110,” and § 1110, in turn, provides compensation only for
an “injury” or “disease” contracted or aggravated in the
line of duty. If pursuant to a valid VA regulation (38
C.F.R. § 3.303(c)), a condition is not an injury or disease
within the scope of § 1110, then § 1111 and the presumption
of soundness simply do not come into play. Terry,
340 F.3d at 1386 (“[W]hen sections 1110 and 1111 are
read together, ‘the term defect in section 1111 necessarily
means a defect that amounts to or arises from disease or
5 The version of 38 C.F.R. § 4.9 in effect at the time
of the 1988 Board Decision is identical to the present
version of the regulation. Compare 38 C.F.R. § 4.9 (1982)
with 38 C.F.R. § 4.9 (2011). Although not identical to the
present version of the regulation, the version of 38 C.F.R.
§ 4.127 in effect at the time of the 1988 Board Decision
treats personality disorders in the same manner. Compare
38 C.F.R. § 4.127 (1982) (“Mental deficiency and
personality disorders will not be considered as disabilities
under the terms of the schedule.”) with 38 C.F.R. § 4.127
(2011) (“Mental retardation and personality disorders are
not diseases or injuries for compensation purposes . . . .”).
MORRIS v. DVA 17
injury.’” (quoting Winn v. Brown, 8 Vet. App. 510, 516
(1996)). As noted in the 1988 Board Decision, based upon
the record before it, the Board found that, while in service
in 1964, Mr. Morris exhibited a personality disorder, and
under 38 C.F.R. § 3.303(c), as well as 38 C.F.R. §§ 4.9 and
4.127, a personality disorder is not a compensable “injury”
or “disease.” Accordingly, we are unable to agree with Mr.
Morris that the Board committed CUE when it denied his
claim for service connection without applying § 1111’s
presumption of soundness. See 1988 Board Decision.
Mr. Morris’s argument that the presumption of
soundness should be applied in the case of a personality
disorder effectively conflates the diagnosis inquiry and
the causation inquiry. Diagnosis involves the observation
of certain symptoms and characteristics that indicate the
presence of a particular condition. The diagnosis process
does not implicate the question of whether the veteran
was in sound condition when he or she entered service.
That is because all that is relevant at the diagnosis stage
is determining the service member’s present condition.
Once a diagnosis is made, however, as was the case here,
the temporal relationship between the onset of symptoms
and service must be examined to determine whether the
disorder is service related. It is only at this stage in the
inquiry that the presumption of soundness becomes
relevant. Causation is not at issue in this case, however.
Because Mr. Morris was diagnosed with a personality
disorder, it was unnecessary to examine causality as
personality disorders cannot legally be service related.
See Conley, 543 F.3d at 1305 (“Under 38 C.F.R. § 3.303(c),
. . . personality disorders are considered ‘[c]ongenital or
developmental defects’ for which service connection cannot
be granted because they ‘are not diseases or injuries
within the meaning of the applicable legislation.’”). In
effect, Mr. Morris is trying to circumvent the 1988 factual
MORRIS v. DVA 18
finding that there was an in-service diagnosis of a personality
disorder, which we cannot review, by importing the
presumption of soundness into the diagnosis inquiry.
In support of his position, Mr. Morris highlights certain
language within § 3.303(c). Specifically, he points to
the following language:
In the field of mental disorders, personality disorders
which are characterized by developmental
defects or pathological trends in the personality
structure manifested by a lifelong pattern of action
or behavior, chronic psychoneurosis of long
duration or other psychiatric symptomatology
shown to have existed prior to service with the
same manifestations during service, which were
the basis of the service diagnosis, will be accepted
as showing preservice origin.
This sentence does not support Mr. Morris’s argument,
however. Section 3.303(c) states that based on universally
recognized medical principles, certain disabilities
arise from conditions that necessarily are unrelated to
service and thus, by definition, can not be service related.
The description of personality disorders within § 3.303(c)
merely explains why personality disorders can not be
service related, which the regulation emphasizes.
(“[P]ersonality disorders and mental deficiency as such
are not diseases or injuries within the meaning of applicable
legislation.”). See also 38 C.F.R. § 4.9
(“[P]ersonality disorder and mental deficiency are not
diseases or injuries in the meaning of the applicable
legislation for disability compensation purposes.”); § 4.127
(“Mental retardation and personality disorders are not
diseases or injuries for compensation purposes . . . .”). As
far as mental disorders distinct from personality disorders
are concerned, “chronic psychoneurosis of long duration or
MORRIS v. DVA 19
other psychiatric symptomatology shown to have existed
prior to service with the same manifestations during
service, which were the basis of the service diagnosis, will
be accepted as showing preservice origin.” Thus, the
language of § 3.303(c) does not support the argument that
a personality disorder is a compensable disability unless
it is shown to exist prior to service.
Nor do the two opinions from the VA General Counsel
provide Mr. Morris with any help. DVA Op. Gen. Counsel
Prec. 82-90 (July 18, 1990) discusses whether disorders of
congenital or developmental origin may be service related.
The opinion distinguishes between a disease, which is a
condition that is capable of improvement or deterioration,
and a defect, which is a condition that is not capable of
improvement or deterioration. In making this distinction,
the General Counsel states that hereditary “diseases”
may qualify for service connection whereas hereditary
“defects” are excluded from coverage by § 3.303(c). At the
same time, DVA Op. Gen. Counsel Prec. 67-90 (July 18,
1990) discusses whether a hereditary disease always
rebuts the presumption of soundness. Again focusing on
the distinction between a “disease” and a “defect,” the
General Counsel states that hereditary “diseases,” which
are capable of improvement or deterioration, may be
entitled to service connection. When the two opinions are
read together, it is apparent that they are referring solely
to hereditary diseases that are not “congenital or developmental
defects”; such defects are expressly excluded
from coverage by § 3.303(c). Indeed, DVA Op. Gen. Counsel
Prec. 82-90 (July 18, 1990) makes clear that the terms
“disease” and “defect” are mutually exclusive. Thus,
contrary to Mr. Morris’s contention, the two opinions
provide no support for the proposition that “[c]ongenital
or developmental defects, refractive error of the eye,
MORRIS v. DVA
20
personality disorders, and mental deficiency” are entitled
to the presumption of soundness.
In sum, according to the express language of 38 C.F.R.
§ 3.303(c), personality disorders are not diseases or injuries
within the meaning of § 1110 and thus are not compensable.
Therefore, the Board and the Veterans Court
did not err in holding the presumption of soundness
inapplicable to Mr. Morris’s case. The 1988 Board Decision
therefore was not tainted by CUE. As we hold there
was no CUE in the 1988 Board Decision, we need not
address the government’s alternative argument that,
assuming there was CUE, the error was not outcome
determinative.

CONCLUSION
For the foregoing reasons, the decision of the Veterans
Court is affirmed.
Each party shall bear its own costs.
AFFIRMED
United States Court of Appeals
for the Federal Circuit
__________________________
JACK D. MORRIS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7061
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-0017, Judge Robert N.
Davis.
__________________________
DYK, Circuit Judge, concurring.
I agree that the majority has reached the correct result
and join the majority, but I think additional explanation
is useful because the regulation is not immediately
clear on its face. The statute provides that only an “injury”
or “disease” that is service-connected is compensable.
38 U.S.C. §§ 1110, 1131. These terms are not
defined in the statute, but the Department of Veterans
Affairs regulations defining “injury” and “disease” are
entitled to Chevron deference. See Terry v. Principi, 340
F.3d 1378, 1382 (Fed. Cir. 2003). Those regulations state
that personality disorders are not injuries or diseases
within the meaning of the statute. See 38 C.F.R.
MORRIS v. DVA 2
§ 3.303(c) (“[P]ersonality disorders and mental deficiency
as such are not diseases or injuries within the meaning of
applicable legislation.”); id. § 4.9 (“[P]ersonality disorder
and mental deficiency are not diseases or injuries in the
meaning of applicable legislation for disability compensation
purposes.”); id. § 4.127 (“Mental retardation and
personality disorders are not diseases or injuries for
compensation purposes.”).
The first question is whether the regulation at issue,
38 C.F.R. § 3.303(c), defines “personality disorder.” I
think it does. The regulation provides, in relevant part:
In the field of mental disorders, personality disorders
which are characterized by developmental defects
or pathological trends in the personality
structure manifested by a lifelong pattern of action
or behavior, chronic psychoneurosis of long duration
or other psychiatric symptomatology shown to
have existed prior to service with the same manifestations
during service, which were the basis of
the service diagnosis, will be accepted as showing
preservice origin.
38 C.F.R. § 3.303(c) (emphasis added). The most natural
reading of this regulation is that a personality disorder is
a disorder “characterized by developmental defects or
pathological trends in the personality structure manifested
by a lifelong pattern of action or behavior.” Id.
Thus, in theory, if a disorder did not exist before service,
it would not fall into the category of a personality disorder,
which requires a “lifelong pattern.”
However, I do not read the regulation as applying the
presumption of soundness or aggravation to personality
disorders or as requiring proof of preservice origin or no
aggravation, but only to require such a showing with
respect to “chronic psychoneurosis of long duration or
MORRIS v. DVA
3
other psychiatric symptomatology.” Id. In other words,
the clause “shown to have existed prior to service with the
same manifestations during service” modifies only
“chronic psychoneurosis of long duration or other psychiatric
symptomatology,” which—unlike personality disorders
—may be compensable if they are shown not to have
existed prior to service. Id. While the regulation then
appears to state that all the listed items “will be accepted
as showing preservice origin,” that means merely that all
such disorders are non-compensable. Id. Thus I agree
that the majority here is correct in holding that the presumption
of soundness does not apply to personality
disorders.

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