Citation Nr: 18155161 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 09-23 263A DATE: December 3, 2018 ORDER Service connection for an acquired psychiatric disability, other than posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT The evidence is at least in equipoise that the Veteran’s acquired psychiatric disability was manifested during his active duty service . CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability, other than PTSD, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to January 1969. He died in December 2015; as such, his surviving spouse is the Appellant and she has been substituted into the claim for purposes of processing it to completion. 38 C.F.R. § 3.1010. This matter is before the Board of Veterans’ Appeals (Board) after an extensive appellate history, which will be summarized herein. The issue is initially on appeal from a July 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2012, the Board remanded service connection for an acquired psychiatric disability, other than PTSD (the matter of service connection for PTSD was denied in a prior November 2009 unappealed rating decision) for evidentiary development. In an August 2014 decision, the Board denied service connection for an acquired psychiatric disability. The Veteran appealed the August 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In July 2015, the Court issued an Order that vacated the August 2014 Board decision and remanded the matter on appeal for readjudication consistent with the terms outlined in a July 2015 Joint Motion for Remand (JMR) by the parties. The Veteran died in December 2015 and in January 2016, the matter was dismissed due to the Veteran’s death. However, in April 2016 the Veteran’s spouse was properly substituted and the appeal was reactivated. In May 2016, the Board again remanded the matter for development consistent with the terms of the July 2015 JMR. In August 2017, the Board again denied service connection for an acquired psychiatric disorder. The Appellant appealed the August 2017 Board decision to the Court. In March 2018, the Court granted another JMR by the Appellant’s representative and the VA General Counsel. Entitlement to service connection for an acquired psychiatric disability, other than PTSD The Veteran originally filed his claim and was denied service connection for an acquired psychiatric disability in July 2007. While he passed away in December 2015, during his lifetime, and now through his wife (the Appellant), they have contended that he suffered from an acquired psychiatric disability due to his time in service. The Veteran’s mental health has been evaluated extensively in conjunction with this claim and has been discussed in-depth in prior Board decisions as well as Court motions. As such, while the pertinent facts will be identified and discussed below, the entirety of the Veteran’s claim and medical history will not be re-stated herein if not necessary for the grant of service connection. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Entitlement to direct service connection requires evidence of three elements: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). The Veteran has been diagnosed as having had major depressive disorder (MDD), recurrent severe, with psychotic features. In a November 2018 opinion by Dr. J.S., Licensed Clinical Psychologist, the evaluating clinician reviewed the entirety of the Veteran’s mental health record, lay statements from the Veteran during his lifetime, and after interviewing the Appellant, he opined that regardless of prior diagnoses under the DSM-IV, in considering all evidence of record and with current medical understanding of mental health diagnoses, the Veteran had MDD with psychotic features during his lifetime. As such, the first element of service connection has been met. As such, the analysis moves to the second element of service connection, an in-service event or occurrence. In a November 2007 lay statement from the Veteran, he reported that his problems began in boot camp, where he had to get up early at least 3 days a week, taken to the drill field to run, as early as 2:30 or 3 a.m. In his September 2007 Notice of Disagreement, the Veteran added that he had been ordered to do “double time” for a couple hours at least three days a week. Military personnel records reflect that the Veteran manifested behavior issues in service. The January 1969 discharge action expressly details a variety of incidents in which the Veteran had demonstrated “character and behavior disorder, […] manifest by immaturity, response to frustration by threatening and aggressive behavior, irresponsibility and abuse of alcohol.” As such, the Board finds there was an in-service occurrence. Finally, the Board’s analysis moves to the final element of service connection, a causal relationship between the Veteran’s in-service event or occurrence and the diagnosis of MDD with psychotic features. The Veteran was provided a VA examination in October 2012. The VA examiner declined to provide a mental health diagnosis as due to his military service, and noted that the “primary cause of his difficulties has been his anti-social personality which has resulted at times in mood impairment and caused the diagnosis of MDD by his psychiatrist.” In a March 2017 addendum opinion, a VA clinician reviewed the Veteran’s file and opined that the Veteran’s current mental health diagnoses were not related to service as they are “separate and distinct from a personality disorder.” Further, that psychiatric disabilities arose due to his numerous medical issues and the impairment, frustration, and limited quality of life. Finally, the VA clinician opined that the record reflects that the Veteran’s psychiatric disabilities were due to the poor quality of his life, which manifests in severe depression and depression was not evident in service. Separately, the noted behavioral issues in service are characterological and a product of the then diagnosed antisocial personality disorder, which is a product of early life variables and not military service. In November 2018, the Veteran’s attorney submitted a private opinion from licensed clinical psychologist, J.S., Ph.D. Dr. J.S. reviewed the Veteran’s claims file and interviewed the Appellant regarding the nature and etiology of the Veteran’s claimed acquired psychiatric diagnoses. Dr. J.S. considered the Veteran’s past diagnoses. He explained that the diagnosis given in service of passive-aggressive personality disorder was later invalidated by the DSM-IV and DSM-5 as not representing a verifiable psychiatric diagnosis. He further determined that the Veteran did not have antisocial personality disorder, but had psychotic mood disorder, especially as the Veteran’s childhood and early life experiences is not compatible with that previous diagnosis. Further, Dr. J.S. notes that psychotic mood disorder is a feature that appears in the most severe level of major depression, which the Veteran was consistently diagnosed with during his lifetime and confirmed by Dr. J.S. Dr. J.S. explained that the Veteran’s chronic paranoia, which is a feature of his severe major depressive disorder fully accounted for the Veteran’s threatening, aggressive, and violent behavior, which was noted to have been present during service until the time of his death. Finally, Dr. J.S. opined that it was at least as likely as not that the Veteran’s MDD with psychotic features is related to his military service, which became strongly present during service as evidenced by his noted behavioral issues supported both by the Veteran’s lay statements and his military personnel record. The Board finds that the opinion of Dr. J.S. is the most probative of record as it most clearly and comprehensively considered the entirety of the Veteran’s claim in light of the most current understanding of mental health. The Board recognizes that this opinion was developed after the Veteran’s death; however, the Veteran’s extensive lay statements and well-documented behavior issues in service, the reports from the Appellant regarding observable symptoms of the Veteran, and the Veteran’s mental health treatment records create a very clear picture of the Veteran’s claim. Therefore, Dr. J.S.’s opinion is based on sufficient facts and provides a well-reasoned and thorough rationale for the conclusions reached. While the October 2012 VA examiner evaluated the Veteran in person, the Board finds that this opinion is less probative as it did not consider diagnoses of record other than the personality disorder diagnoses, which have subsequently been deemed by the November 2018 private psychologist not to be valid diagnoses. Similarly, the March 2017 VA opinion did not consider all of the Veteran’s psychiatric conditions, to include the date of onset of all of his symptoms. The Board thus places less weight of probative value on this opinion, as well. The Board therefore finds that the evidence is at least in equipoise as to whether the Veteran’s acquired psychiatric disorder, diagnosed as MDD with psychotic features, was caused by his service based on the opinion of Dr. J.S. in November 2018. As such, and giving the Veteran the benefit of the doubt, service connection for an acquired psychiatric disorder is warranted. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel