Citation Nr: 18153983 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 14-12 266 DATE: November 29, 2018 ORDER The RO’s July 2015 severance of service connection for an acquired psychiatric disorder was proper; the appeal is denied. The claim for an initial evaluation in excess of 50 percent for service-connected depressive disorder is dismissed. FINDING OF FACT The rating decision of August 2012, which granted service connection for a depressive disorder, was based on clear and unmistakable error. CONCLUSIONS OF LAW 1. The rating decision of July 2015 properly severed service connection for a depressive disorder. 38 U.S.C. § 7105; 38 C.F.R. § 3.105 (d). 2. The Board having determined that the rating decision of July 2015 properly severed service connection for a depressive disorder, the issue of entitlement to an initial evaluation in excess of 50 percent for a depressive disorder is now moot, warranting dismissal of the appeal as to that issue. 38 U.S.C. § 7105. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from August 1987 to October 1994. In September 2017, the Board determined that the rating decision of July 2015 properly severed service connection for a depressive disorder, and dismissed a claim of entitlement to an initial evaluation in excess of 50 percent for a depressive disorder as moot. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and in a June 2018 Order, the Court granted a Joint Motion (JMR) of the parties and remanded the case to the Board for action consistent with the Joint Motion. Inasmuch as the Joint Motion did not take issue with the Board’s September 2017 decision, except as noted below, it is largely repeated herein. The Board parenthetically notes that the Joint Motion stated that whether the Veteran has has, or ever had, PTSD related to fear of hostile military activity is irrelevant to the underlying claim as to the propriety of the severance of service connection for a depressive disorder, as the scope of the claim is no longer at issue. Citing Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009). However, as the medical history contains a number of opinions involving PTSD, they have been retained to ensure a complete record. 1. Severance of Service Connection for a Depressive Disorder. In February 2011, the Veteran filed a claim for service connection for an acquired psychiatric disorder. In August 2012, the RO granted service connection for a depressive disorder. In April 2014, the RO notified the Veteran that it proposed to sever its grant of service connection for his depressive disorder. The RO stated, in essence, that the basis of its grant in August 2012 was unclear, as a review of the record did not show any relevant treatment during service, or until 2008, many years after the Veteran had separated from service. The RO stated that subsequently-dated medical evidence, primarily a September 2013 VA examination report and an associated April 2014 addendum opinion, discussed infra, did not support the grant of service connection. In an April 2014 rating decision, the RO denied service connection for a personality disorder. There was no appeal, and the RO’s decision became final. See 38 U.S.C. § 7105 (c). In July 2015, the RO severed the grant of service connection for a depressive disorder, effective October 1, 2015. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See 38 C.F.R. § 3.303 (d). In such instances, a grant of service connection is warranted only when, “all of the evidence, including that pertinent to service, establishes that the disease was incurred during service.” Id. Congenital or developmental defects, personality disorders, mental deficiency, and other such “defects,” are not compensable diseases or injuries within the meaning of veterans’ benefits law, and therefore service connection for them is generally precluded by regulation. 38 C.F.R. §§ 3.303 (c), 4.9; Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection will be severed only where evidence establishes that the grant of service connection was clearly and unmistakably erroneous. 38 C.F.R. § 3.105 (d). Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that, when called to the attention of reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would be manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). To warrant revision of a decision on the ground of clear and unmistakable error in a severance of service connection case, there must have been an error in the adjudication of the appeal that, had it not been made, would have manifestly changed the outcome, i.e., whether, based on the current evidence of record, a grant of service connection would be clearly and unmistakably erroneous. Graves v. Brown, 6 Vet. App. 166, 170 (1994). The same standards apply in a determination of clear and unmistakable error in a prior decision and a determination as to whether a decision granting service connection was the product of clear and unmistakable error for the purpose of severing service connection; however, for the latter case, the reviewable evidence is not limited to that which was before the RO at the time of the challenged rating decision. See Daniels v. Gober, 10 Vet. App. 474 (1997). In fact, VA regulations provide that a change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. 38 C.F.R. § 3.105 (d). The severance decision focuses not on whether the original decision was clearly erroneous, but on whether the current evidence establishes that service connection is clearly erroneous. Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006). The Veteran’s personnel file, to include his discharge (DD Form 214), shows that his primary specialties were accounting specialist, and food service specialist. His awards include the Kuwait Liberation Medal, the Southwest Asia Service Medal with two bronze service stars, and the Valorous Unit Award. He had service with an air defense artillery unit in Southwest Asia between October 1990 and March 1991; his principal duty during this time was cook. The Veteran’s service treatment records for his active duty, and National Guard duty, are not entirely of record. In this regard, in a memorandum, dated in June 2012, the RO determined that these records are not available, and that additional attempts to obtain them would be futile. See 38 U.S.C. § 5103A (b)(3); 38 C.F.R. § 3.159 (c)(2). Of the few service treatment records that have been associated with the claims file, an examination report associated with National Guard duty, dated in January 1996, shows that his psychiatric condition was clinically evaluated as normal. In an associated report of medical history, he stated that he was in good health. He also specifically denied a history of frequent trouble sleeping, nervous trouble of any sort, or depression or excessive worry. As for the nonservice medical evidence, VA progress notes show the following: The Veteran first sought treatment in January 1999, at which time it was noted that “the Veteran does not report or present symptoms of major mental illness or substance use.” He reported “an extensive history of child abuse as a child growing up in foster care.” He also described difficulty with comprehension that has been an impediment since childhood. The report indicates that he was homeless and that he had financial problems. In October 2000, a note from a chaplain shows that he complained of being homeless and financial issues, and “a number of anxieties”; there was no diagnosis. Reports from the Vet Center show that in November 2001, the Veteran sought assistance from the Homeless Veterans Coalition. At that time, he denied a history of health concerns related to mental health issues or PTSD. In December 2006, he was first diagnosed with depression. He stated that between ages 14 and 17 he was sent to several psychologists. He said that this was done by foster parents who were abusive. The next relevant evidence is dated in January 2008, at which time he reported a history of being in a severe accident in December 2007, while working as a truck driver. He stated that four people were killed (in some accounts he reported that five people were killed); he was not injured. He stated that he thought that he has PTSD due to the accident, and that he wanted treatment, although he had been cautioned by his employer and his lawyer not to talk to anyone about the accident. The diagnosis was rule out PTSD. In April 2008, he reported having depression since the 2007 accident, as well as suicidal ideation. He stated that some of the attorneys tried to get him criminally charged to help with a law suit against his company. He was concerned about the possibility of both criminal and civil proceedings. The examiner noted that he was endorsing symptoms of PTSD, including nightmares and flashbacks “also related to” the December 2007 accident. He was noted to be struggling with “feelings of guilt associated with the incident.” His diagnoses were anxiety NOS (not otherwise specified), depression NOS, and rule out adjustment disorder with mixed features, and a likely Axis II diagnosis. Thereafter, he received treatment for psychiatric symptoms, with diagnoses primarily of depression and/or PTSD, with other diagnoses to include an adjustment disorder with depression, and moderate-severity adult attention deficit disorder, inattentive type. There are multiple notations indicating that his psychiatric symptoms are related to his 2007 motor vehicle accident. See e.g., reports, dated in April 2011, January and April of 2012; see also April 2009 reports (noting that he reported reoccurring and horrific images related to the accident, and that he would like to engage in therapy to help him work through the trauma he experienced from the accident in December 2007). The next relevant evidence is dated in 2012, at which time he was afforded a diagnosis of PTSD. See also reports from the Vet Center dated in 2012 (same). A VA PTSD examination report, dated in May 2012, completed by Dr. S, shows that the examiner indicated that the Veteran’s claims file had been reviewed. The Veteran denied receiving any treatment for mental health symptoms prior to 2008. The examiner noted that the Veteran described having developed some psychological symptoms following his service in Southwest Asia, including depression, and stated that he does not meet diagnostic criteria for PTSD. The Axis I diagnosis was depressive disorder that “is at least as likely as not the result of or caused by military service.” The Axis II diagnosis was personality disorder not otherwise specified, that “is less likely as not caused by or the result of military service.” A VA psychiatric examination report, dated in September 2013 (by a different VA examiner) (Dr. W.H.) notes the following: The Veteran was seen briefly by VA for treatment of mental health symptoms in 2006 and 2007, but he did not continue treatment at those times. His first entry of ongoing into treatment was not until his report (in early 2008) of being in a severe motor vehicle accident (in December 2007). He was concerned about being sued over this incident. At that time, he made no mention of symptoms related to PTSD from the military. The Veteran has since changed his purported stressor event from his 2007 motor vehicle accident to stressful events which took place during his military service. During neuropsychological testing in March 2009, it was clearly determined that he had ADHD in his childhood. The Axis I diagnosis was attention deficit/hyperactivity disorder, inattentive type. The Axis II diagnosis was personality disorder NOS with borderline paranoid and antisocial features. Dr. W.H. concluded: To a reasonable degree of psychological certainty based upon all records available for review and the entire history of the case of this individual, I conclude that he does not have posttraumatic stress disorder from any military service activity and does not have any depressive disorder from any military activity. In an addendum, dated in April 2014, Dr. W.H. indicated that he had reviewed the Veteran’s case with Dr. S. Dr. W.H. stated: Dr. S and I have reviewed records and conferred about this matter. We are in agreement after review that my diagnostic formulation is correct. The Veteran did not have an Axis I disorder related to military service. Dr. S did not find military record of depression, and inadvertently applied the PTSD standard (i.e. no record necessary if a veteran was in a combat zone and suffers from PTSD) to a mental disorder case. We agree that the primary diagnosis is the personality disorder, the secondary diagnosis is the pre-military ADHD, and depressive symptoms (now resolved) were never a part of the clinical picture until after the Veteran was fearful of a lawsuit following a post-military motor vehicle accident. In April 2014, the RO proposed to sever the Veteran’s initial grant of service connection, finding that clear and unmistakable evidence was made in its decision to grant service connection benefits for a depressive disorder. In July 2015, the RO severed service connection for the Veteran’s depressive disorder, effective October 1, 2015. In October 2015, the RO noted that a positive etiological opinion had been received from Dr. A.U. in September 2015, in which she concluded that the Veteran has PTSD related to his service (discussed infra), and that the Veteran’s stressor (regarding interception of enemy missiles) had been verified. The RO therefore requested a supplemental opinion from Dr. S. In November 2015, a supplemental opinion was received from Dr. S in which he stated the following: The Veteran’s VA e-folder (VMBS or Virtual VA) had been reviewed. The Veteran sought VA treatment for psychiatric symptoms subsequent to a motor vehicle accident in December 2007, and expressed a fear of legal consequences. He did not make any claims of service-connected trauma or psychological symptoms that would be related to service-connected trauma until he was informed that his 2007 motor vehicle accident could not serve as a basis for a grant of service connection for such symptoms. The Veteran has a history of possible childhood abuse, with a personality disorder with paranoid, borderline and antisocial features, along with cognitive deficits from ADHD (attention-deficit/hyperactivity disorder) which make it impossible to discern the accuracy of his report of his early development. Following service he has never been able to adjust to ordinary life, and he has had recurrent conflicts with people in all spheres of his life, both occupational and public settings. He has provided somewhat inconsistent details of the 2007 motor vehicle accident, and about his life, and he has often been quite vague about details. His perception of events is deeply colored by both his personality disorder and his ADHD, which interfere with his ability to attend to events occurring in his environment and accurately process information. With regard to Dr. A.U.’s opinion, Dr. S stated that she did not have access to all of the Veteran’s VA clinical records and presumably relied upon the Veteran’s current descriptions of his symptoms, and his history. In comparing what he has told different VA clinicians at different times, it is evident that he is not a reliable historian. In conclusion, Dr. S stated that the Veteran does not have any psychiatric condition that could be associated with his active duty. He has a personality disorder which would have developed by adolescence, and has cognitive deficits from ADHD, which would also be a condition from childhood. His diagnosis of depressive disorder is being discontinued, as his occasional depressive symptoms are due to the borderline feature of his personality disorder and do not reflect a separate psychiatric condition. His personality disorder has been the principal contributor to his difficulties all his life. In March 2016, the Board remanded the claim, but noted that the November 2015 examination report was exceptionally thorough and well-supported, and that a change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous, and that this certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. Citing 38 C.F.R. § 3.105. The Board therefore directed that the Veteran be afforded another VA examination. A VA PTSD disability benefits questionnaire (DBQ), dated in July 2016, completed by Dr. S.S., shows that the examiner reviewed the Veteran’s VA e-folder (VMBS or Virtual VA). The Veteran reported that he had been depressed since 1990. The Veteran was afforded psychological testing. Dr. S.S. stated the following: The Veteran does not meet clinical criteria for PTSD. In this regard, there is a history of inconsistencies in the Veteran’s descriptions of his war experiences. Another important inconsistency is that in 2008-2009 the Veteran described guilt and nightmares that he felt were components of PTSD associated with the 2007 MVA, but today he is dismissive of the possibility that he would have any residual negative associations with that accident. Furthermore, Dr. S.S. stated that she concurs with the findings of the prior two VA examiners with respect to the PTSD issue (Dr. S and Dr. W.H.). She explained that the clinical documentation clearly shows that in 2008 - 2009 treatment records, the Veteran presented with symptoms associated with the 2007 car accident and when PTSD was diagnosed (such as in the neuropsychological exam), it was due to the 2007 motor vehicle accident, and not to any combat trauma, as there was no mention of combat-related stress. It was not until after his denial for service connection that he began claiming that his symptoms were secondary to combat. His mental health encounters between 2011 and 2013 show that his primary treatment providers were concerned he was scheduling meetings with them only to further his claim and that he had no interest in treatment. In fact, he directly expressed disinterest in treatment on multiple occasions. His VA therapist wrote specifically that the Veteran more likely than not appeared to be motivated by secondary gain, and his psychiatrist felt he was worried about giving the wrong answer that could affect his claim. That therapist specifically stated, “I do not believe he has PTSD and he has not engaged in treatment.” Dr. S.S. noted that in April 2011, the Veteran specifically requested a new social worker and psychiatrist who could get him service connection. The diagnoses were: 1) other specified personality disorder with antisocial, paranoid and borderline features. The examiner stated that this is a diagnosis of childhood/adolescent development and is not influenced by military service to any significant degree; 2) other specified depressive disorder, less likely than not (less than 50 percent probability) related to or aggravated by military service at least as likely as not (50 percent or greater probability) caused by or related to post-military adjustment problems secondary to personality disorder; and 3) other specified attention-deficit/hyperactivity disorder. Dr. S.S. stated that this is a diagnosis of childhood/adolescent development, and that it is less likely than not (less than 50 percent probability) related to or aggravated by military service. With regard to the Veteran’s depressive disorder, Dr. S.S. stated that the depression most likely was associated with his pervasive adjustment problems, including his lack of support or relationships, his unemployment, and his housing instability. These adjustment problems stem from his maladaptive personality characteristics and, therefore, his depressive disorder is considered to be secondary to his personality disorder. Psychological testing results in 2009 indicated that the Veteran reported feeling blue and unhappy, was pessimistic about the world and the future, and he lacked confidence. The Veteran’s depressive disorder is unrelated to his military service, as there are no indications of any mental health problems, treatment or diagnosis in the service records. With regard to the diagnosis of a personality disorder, Dr. S.S. noted that the Veteran’s clinical treatment records documents show convincing support for a diagnosis of personality disorder. A personality disorder was the primary diagnosis per his past treating psychiatrist, and it was also diagnosed by the two prior disability examiners (Dr. S and Dr. W.H) and by the private examiner who provided the most recent DBQ submission (Dr. M.W.). With regard to the diagnosis of ADHD, Dr. S.S. stated that the Veteran’s ADHD is a developmental disorder of childhood onset and that it was not caused or aggravated by military service. She explained that there are no indications of any mental health problems, treatment or diagnosis in the service records, including any attentional complaints, difficulties with memory, or performance problems. A lay statement from M.K., dated in August 2016, asserts that the Veteran’s behavior after service in Southwest Asia was “like night and day,” to include having a “glass-like look in his eyes,” and being considered a ticking time bomb. A lay statement from J.T., received in July 2018, shows that she states that she became the Veteran’s foster mother in 1980, and that he was friendly and got along well with family and friends. He was later moved to a group home and graduated from high school in 1987 and joined the military two months later. A lay statement from L.H., received in August 2018, shows that she reports that she knew the Veteran between 1985 and 1987, and that he was kind, polite, respectful, and that he did well in a youth employment program for two or three summers. The Board will not consider whether there were any procedural deficiencies in the RO’s severance of service connection, as neither the Veteran nor his representative have asserted such deficiencies; also, the record reflects that the RO complied with the provisions of 38 C.F.R. § 3.105 (d). See e.g., RO’s April 2014 notification letter. As an initial matter, the Board finds the Veteran is not an accurate historian. The Veteran has reported that he has psychiatric symptoms, to include depression, during and since his service. However, his psychiatric condition was clinically evaluated as normal in a January 1996 examination report associated with National Guard duty (about a year and two months after active duty service), and he specifically denied having depression or excessive worry at that time. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). VA progress notes contain a number of notations that the Veteran is a poor or difficult historian, and that his desire for service connection was a secondary gain issue. See e.g., VA progress notes, dated in June 2008; March, April and June of 2011; see also November 2015 opinion (stating that the Veteran is not a reliable historian); July 2016 VA PTSD DBQ (noting that “it was not until after his denial for service connection that he began claiming that his symptoms were secondary to combat”). Caluza v. Brown, 7 Vet. App. 498, 511 (1995). He has also expressed homicidal ideation toward VA personnel. See VA progress note, dated in August 2015 (noting that he endorsed HI (homicidal ideation) towards a VA staff member who is in the process of reviewing his claim (quoting him as saying, “I’d like to take a baseball bat to her head”)). Although he sought treatment with VA as early as 1999, and with the Vet Center in 2001 (at which time he denied mental health or PTSD symptoms), he did not report the existence of any psychiatric symptoms until approximately 2006. AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). Accordingly, the Board finds that the Veteran is not an accurate historian. Caluza. There is no medical evidence to show that the Veteran has additional disability from aggravation (i.e., a permanent worsening) of a congenital or developmental defect, i.e., mental deficiency during service from a superimposed disease or injury. See VAOPGCPREC 82-90, 56 Fed. Reg. 45, 711 (1990). The Board finds that the RO’s grant of service connection for a depressive disorder in September 2012 was based on clear and unmistakable error. The issue in this case is whether or not service connection was warranted for a depressive disorder that had its onset during service. 38 U.S.C. §§ 1110, 1131; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, there is no evidence in the available service medical records to show any relevant complaints, treatment, findings, or diagnoses, nor has the Veteran claimed to have received any treatment for psychiatric symptoms during service. He affirmatively denied a history of depression or excessive worry, or nervous trouble of any sort, in January 1996, which was over a year after separation from active duty. His psychiatric condition was clinically evaluated as normal at that time. Between 1999 and 2005, VA progress notes show that he failed to report having any psychiatric symptoms. The first evidence of an acquired psychiatric disorder is dated in 2006, which is about 11 years after separation from active duty service. With regard to the etiological opinions, although a VA physician, Dr. S, initially provided a favorable opinion in May 2012, he subsequently stated that he had applied the incorrect legal standard, and he concluded that the Veteran does not have any psychiatric condition that could be associated with his active duty. See April 2014 VA supplemental opinion; November 2015 opinion. These latter two opinions indicate that he revised his original conclusion, and they render his original May 2012 opinion to be without probative value. In addition, the September 2013, April 2014, November 2015, and July 2016 VA opinions all weigh strongly against the claim. These opinions are considered to be highly probative, as they are shown to have been based on a review of the Veteran’s claims files, and as they are accompanied by sufficient explanations. Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board finds that the RO’s grant of service connection for a depressive disorder in September 2012 was based on clear and unmistakable error, as it did not represent a reasonable application of the known facts to the law, and as the factual evidence and competent medical opinions of record do not show that the Veteran is entitled to service connection for a depressive disorder, and that the RO’s severance of service connection in July 2015 was proper. In reaching this decision, the Board has considered the opinions submitted by the Veteran in support of his claim from Dr. D.Z., Dr. A.U., and Dr. M.W., collectively dated between 2015 and 2017, which assert that the Veteran has PTSD and/or a depressive disorder due to his service. An associated research article from Dr. M.W. is also of record, which states that there is a clear link between having served on active duty in the Persian Gulf War and incidents of PTSD. The issue is whether the Veteran has a depressive disorder that had its onset during service. 38 U.S.C. §§ 1110, 1131; Walker. These opinions all indicate that they are based on the Veteran’s assertions of psychiatric symptoms during service. However, it is the Board, not the examiner, that determines credibility. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). The Board has determined that the Veteran is not a credible historian, and that his assertions of psychiatric symptoms during and since his active duty service are inconsistent with, and contradicted by, his treatment records, and therefore lacking in credibility. As previously stated, there are no relevant service treatment reports of record. The earliest post-service medical evidence to show an acquired psychiatric disorder is dated in 2006, which is about 11 years after active duty service. Therefore, these opinions lack an established factual basis, and they are afforded no probative value. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). In addition, Dr. A.U.’s opinions are not shown to have been based on a review of the Veteran’s claims file, or any other detailed and reliable history. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In addition, Dr. A.U.’s opinion was reviewed by both Dr. S and Dr. S.S., who indicated that they did not find it persuasive. In this regard, Dr. S stated that there are no indications that Dr. A.U. had reviewed any of the Veteran’s VA clinical records, and that her report did not include any detailed development, social, or occupational history. Boggs v. West, 11 Vet. App. 334, 344 (1998). For these same reasons, supra, an opinion from Dr. K.W., received in October 2018, is afforded no probative value. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Dr. K.W. does not cite to any inservice findings. She indicates that she did not review any medical records dated prior to 2000. She also indicates that her opinion was based, in part, on an interview with the Veteran, and that, “It is assumed that the information provided to me is correct.” However, the Board has determined that the Veteran is not a credible historian. The Board further notes that under the circumstances, additional development is not warranted. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). The aforementioned opinions are wholly lacking in probative value for the reasons stated, and the Board finds that there is clear and unmistakable evidence that the RO’s grant of service connection for a depressive disorder in September 2012 was based on clear and unmistakable error. Madden. Accordingly, the RO’s severance of service connection in July 2015 was proper. In reaching this decision, the Board has considered the June 2018 Joint Motion, which states that the Board previously failed to address the provisions of 38 C.F.R. § 4.127 in its September 2017 decision. Under 38 C.F.R. § 4.127, intellectual disability (intellectual developmental disorder) and personality disorders are not diseases or injuries for compensation purposes, and, except as provided in § 3.310(a) of his chapter, disability resulting from a mental disorder that is superimposed upon intellectual disability (intellectual developmental disorder) or a personality disorder may be service connected. The application of 38 C.F.R. § 4.127 does not alter the Board’s decision. There is no competent and probative medical evidence to show that the Veteran has a superimposed disease or injury during service that resulted in a depressive disorder, and neither the JMR, nor the Veteran’s representative, has cited to any. Id. In her July 2016 opinion, Dr. S.S. explicitly ruled this possibility out, and her opinion is considered highly probative evidence against the claim. Specifically, she stated that although the Veteran’s depressive disorder is considered to be secondary to his personality disorder, “[t]he Veteran’s depressive disorder is unrelated to his military service, as there are no indications of any mental health problems, treatment or diagnosis in the service records. Madden. Accordingly, service connection is not warranted on this basis. 2. Dismissal. With regard to the claim of entitlement to an initial evaluation in excess of 50 percent for service-connected depressive disorder, this issue was apparently certified for appeal on the basis that it would remain a viable issue in the event that the Board determined that the RO’s July 2015 severance of service connection for a depressive disorder was improper. As the Board has determined that the RO’s severance of service connection for a depressive disorder in July 2015 was proper, there is no longer an underlying service-connected disability that may serve as a basis for a grant of this claim. This issue is therefore rendered moot. As such, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, it is dismissed. 38 U.S.C. § 7105; Smith v. Brown, 10 Vet. App. 330, 333-34 (1997). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.E., Counsel