Citation Nr: 21062912 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-36 768 DATE: October 12, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder (MDD), is granted. FINDING OF FACT It is more likely than not that the Veteran's MDD is related to his active military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1969 to February 1970. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in April 2021, to obtain the Veteran's most recent medical records and schedule a new VA examination regarding the etiology of his psychiatric conditions. Both instructions have been followed, and the Board will proceed with a decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD) Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's medical records show that he has been diagnosed with multiple psychiatric conditions at various points since his military service, including both acquired psychiatric disorders and personality disordersthe latter of which are, under VA regulations, not eligible for service connection. See Winn v. Brown, 8 Vet. App. 510 (1996). The Veteran's most recent VA treatment records list both "personality disorder NOS" and "depressive disorder" among his active problems. Since the Veteran has at least one psychiatric conditiondepressive disorderthat is eligible for service connection, the first element of direct service connection is met. A June 2021 VA examination found that the Veteran's only current diagnosis was MDD. The examiner opined that the Veteran's behavioral problems during service were "in response to racially motivated abuse he experienced in the service and it was relatively common for the military to discredit abuse victims with a personality disorder diagnosis in the era [he] served," and that the Veteran's medical records and in-person examination were consistent with a diagnosis of MDD. (The Veteran also submitted a February 2019 news article discussing overdiagnosis of personality disorders in the military.) The June 2021 examiner went on to find that it was at least as likely as not that the Veteran's MDD was caused by harassment and abuse he faced during service, citing the Veteran's testimony about racist threats and hazing incidents during service, as well as medical records that appeared to corroborate his testimony. As the June 2021 examiner's opinion is based on an examination of the Veteran and full review of the claims file, the Board finds that it merits probative weight. While there were no deficiencies in the June 2021 opinion, the RO nonetheless requested an addendum opinion to clarify the functional impact of the Veteran's MDD (something that will be relevant when the Veteran's disability is evaluated for compensation purposes, but is immaterial to whether service connection is warranted in the first place), and to elaborate on what the examiner meant when stating the Veteran "does not have a personality disorder" (a statement that, in the Board's view, appears to be largely self-explanatory). Rather than an addendum by the June 2021 examiner, in July 2021 the RO received an entirely new VA medical opinion by a different examiner, which reached opposing conclusions. The July 2021 examiner, who by their own admission "did not evaluate the claimant [themselves]," accused the June 2021 examiner of "discount[ing] the claimant's long-standing history of evaluation and treatment for personality disorder." The July 2021 examiner went on to say: [T]he claimant has consistently been diagnosed with a personality disorder as early as 1970 and consistently until the present. There have been numerous evaluations by numerous providers; most of whom have arrived at the same conclusion: the claimant is diagnosed with a personality disorder. Finally, the July 2021 examiner said that the Veteran's lay testimony regarding his history of trauma during service should be discounted, as "a major symptom of antisocial personality disorder is deceitfulness." The fact that the June 2021 examiner directly spoke to and evaluated the Veteran, and the July 2021 examiner did not, is reason enough for the Board to assign more weight to the earlier opinion. However, there are even more problems with the July 2021 opinion. First, the examiner overstates the consistency of the Veteran's history of personality disorder diagnoses. While more than one provider has diagnosed the Veteran with some form of personality disorder, the exact personality disorder diagnosed has been wildly inconsistent. In August 1970, the Veteran was diagnosed with "passive aggressive personality." In April 1972, he was diagnosed with "sociopathic personality disorder." In August 1983, he was diagnosed with "mixed personality disorder, with paranoid and antisocial features." In April 1990 and August 1992, he was diagnosed with antisocial personality disorder. In May 1990, he was diagnosed with borderline personality disorder. In November 2001 and December 2017, he was diagnosed with "personality disorder NOS [not otherwise specified]." Evaluations in June 1990, July 2005, August 2017, and June 2021 made no diagnosis of a personality disorder, only depressive disorders and substance use disorders. Most of the examinations that did diagnose personality disorders also diagnosed acquired psychiatric disorders, such as anxiety disorders and depressive disorders. Given the range of opinions on the Veteran's exact diagnoses, it is unclear why the July 2021 examiner feels qualified to reach a definitive conclusion without even examining him. The July 2021 examiner also gave an insufficient rationale for dismissing the Veteran's lay testimony. While antisocial personality disorder (a diagnosis that has only been given by two of the Veteran's numerous psychiatric providers, and is not listed among his active problems in recent VA medical records) may be associated with "deceitfulness," the potential presence of antisocial personality disorder does not absolve an examiner of their responsibility to evaluate the credibility of a veteran's specific claims. The Veteran has been consistent in his description of hazing and racist abuse during service for years, both in discussions with medical providers for treatment purposes and when making statements to VA related to claims for service connection. Even the examiner who made the Veteran's initial personality disorder diagnosis in 1970 described him as "project[ing] all responsibility for his troubles on fancied prejudice," indicating thatthough the 1970 examiner may not have believed the Veteran's reports of racially-motivated harassmentthe Veteran did make such reports contemporaneously. The assertion that a Black Marine experienced racism while serving in 1969 and 1970 is credible on its face; in December 2019, the Veteran submitted two articles describing escalating racial tensions at Camp Lejeune (where the Veteran was stationed) throughout the mid-to-late 1960s, culminating in several violent incidents in 1969. Finally, the Board notes that the argument over whether the Veteran has a personality disorder is, to some extent, a red herring. While VA regulations prohibit granting service connection for personality disorders, as they are considered congenital or developmental defects, a veteran who happens to have a personality disorder is nonetheless eligible for service connection for an acquired psychiatric disability that was superimposed over his personality disorder during military service. Denying service connection for MDD simply because a veteran also has a personality disorder would be as nonsensical as denying service connection for a broken back simply because a veteran also has scoliosis. Due to the above, the Board finds that the June 2021 VA medical opinion is the most probative evidence in this case, and that it is at least as likely as not that the Veteran's depressive disorder was caused by his active military service. Entitlement to service connection for an acquired psychiatric disability is granted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.