Citation Nr: 21066151 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-57 486 DATE: October 28, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder and unspecified personality disorder is remanded. REASONS FOR REMAND The Veteran had active service from July 1977 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2021, at which time the Board found that new and material evidence had been submitted and reopened the claim for entitlement to service connection for an acquired psychiatric disorder, to include depression. The claim was remanded for further development including a new medical opinion. Following completion of such further development, the issue is again before the Board. 1. Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder and unspecified personality disorder is remanded. The Veteran submitted a claim on July 24, 2008 and a Statement in Support of Claim in which he stated that "While stationed in Germany, I suffered depression but was only referred to the Chaplain for counseling. I have had depressive episodes throughout my life since leaving the service and am currently on medication prescribed by the VA." Military personnel records indicate that the Veteran was administratively discharged under the provisions of AR 635-200 paragraph 5-31, (Expeditious Discharge Program). The reason provided was "Inability to adapt socially or emotionally." His DD-214 notes that he was honorably discharged under the provisions of AR 635-200 paragraph 5-37. The Veteran's service treatment records include a Report of Mental Status Evaluation dated February 1978, related to a February 1978 Recommendation for Expeditious Discharge. A February 1978 memorandum from the Commander of the Veteran's Company recommends approval of the Recommendation for Expeditious Discharge. This memorandum indicates that the Veteran was counseled two times by his company commander and three times by the Chaplain. The Veteran was afforded a VA examination in October 2016. The Veteran was diagnosed with unspecified personality disorder that pre-existed military service; and unspecified depressive disorder. The examiner noted that symptoms of unspecified personality disorder and unspecified bipolar disorder overlap in areas of irritability, impulsivity, mood, and affective instability, poor sleep and concentration and memory. The examiner noted that unspecified personality disorder is a primary condition and was present during adolescence. The examiner found that the Veteran's military records did not show the condition was aggravated beyond the usual course during service as a psychiatric examination record of February 1978 stated there was no evidence of mental illness. The examiner stated that the Veteran's mental illnesses cause occupational and social impairment with reduced reliability and productivity. The following symptoms were noted: Depressed mood; Chronic sleep impairment; Disturbances of motivation and mood; Difficulty in establishing and maintaining effective work and social relationships; Difficulty in adapting to stressful circumstances, including work or a worklike setting; Suicidal ideation; and Impaired impulse control, such as unprovoked irritability with periods of violence. The examiner found that it is less likely than not (less than 50 percent probability) that the Veteran's acquired psychiatric disorder was incurred in or caused by the claimed in service injury, event or illness. The rationale was that the Veteran is diagnosed with unspecified personality disorder and unspecified bipolar disorder. His stated history indicated behaviors consistent with an emergent personality disorder during adolescence, however, STRs indicated that he had no evidence of a psychiatric disorder at the time of his discharge in 1978, which the examiner found indicated the condition was not aggravated beyond the usual course of the condition in service. The examiner stated that bipolar disorder is known to have a genetical loading, and his family history strongly supports the presence of a genetic link to this condition, however he found there is no evidence the onset occurred in service. Therefore, the examiner opined that it is less than at least as likely as not that the personality disorder or unspecified bipolar disorder were caused by or aggravated by military service. In its June 2021 decision, the Board remanded for a new medical opinion and further development of the record to include attempting to obtain private treatment records dated August 2005 that were identified by the Veteran; Social Security Administration disability medical records; and a new VA medical opinion. The Board also remanded for an addendum opinion addressing the Veteran's July 2009 VA treatment encounter at which the Veteran reported that he was discharged from military service early because of his mental health and that he had seen a Chaplain for mental health counseling for several months during service. The examination request stated the requested addendum medical opinion as: "Does the Veteran have a diagnosis of (a) an acquired psychiatric disorder, to include depression that is at least as likely as not (50 percent or greater probability) incurred in or caused by (the) acquired psychiatric disorder during service?" In August 2021 a VA examiner reviewed the record and provided an addendum opinion. The examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's current diagnoses of unspecified personality disorder and unspecified depressive disorder, diagnosed on the October 2016 VA examination, had their onset during military service or were caused by service. The examiner noted that the Veteran's symptoms are consistent with a personality disorder, such as killing animals and hitting himself in the head/banging his head against the wall. The examiner noted that personality disorders are manifested by a set of maladaptive patterns of thinking, behaving, and relating to others that often begin early in life, but are sometimes not obvious until post-adolescence. In addition, the examiner found there is no evidence of any depression, anxiety, or any other mental health symptoms during military service, nor any stressors that would have contributed to a mental health disorder such as depression. The examiner noted that the Veteran reported that he injured his back while in Germany and became depressed and that he was seen by a chaplain for counseling. The examiner found there is no record of the back injury during service or of any complaints of depression during military service. He further noted that the Military Health Assessment dated 2/6/1978 notes no mental health issues, the Psychiatric Consultation/Discharge Proceedings dated 2/7/1978 found that he was fit to continue service and that there were no signs of mental illness, and the Military Medical Exam/Separation Exam dated 2/15/1978 noted no mental health issues. Unfortunately, the Board finds that another remand is necessary due to the inadequacy of the October 2016 and August 2021 medical opinions. The October 2016 examiner's findings and rationale are internally inconsistent and unclear, which does not allow the Board to make an informed decision on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner diagnosed "unspecified depressive disorder" and "unspecified personality disorder" but also refers to "bipolar disorder" and his rationale largely focuses on "bipolar disorder." The examiner's interchangeable use of "unspecified personality disorder" and "bipolar disorder" is confusing and renders subsequent review of the etiology of such diagnoses impossible. The examiner described bipolar disorder and then found that the Veteran's unspecified personality disorder pre-existed military service and began during adolescence. The Board notes the importance of the diagnosis in that bipolar disorder may be service-connected but personality disorders are not recognized as disabilities by VA. 38 C.F.R. §§ 3.303(c), 4.9. However, the provided medical opinion does not address whether the Veteran's personality disorder was subject to a superimposed mental disorder during service that resulted in additional disability. Finally, because he attributed all of the Veteran's symptoms to a pre-existing personality disorder, the examiner did not provide an opinion as to the etiology of the Veteran's depressive disorder. As to the August 2021 opinion, the examiner relied heavily on the 2016 examiner's diagnosis of a pre-existing personality disorder and did not adequately address his depressive disorder diagnosis. Barr v. Nicholson, 21 Ve.t App. 303 (2007). The examiner noted that the Veteran reported that he injured his back during service in Germany and became depressed. He stated that he was seen by a chaplain for counseling. The examiner stated that there was no evidence in the record of either a back injury or symptoms of depression but he did not further address evidence that the Veteran was counseled during service for depression. In fact, as noted above, further review of the record reveals a February 1978 memo from the Commander of the Veteran's Company that recommends approval of the Recommendation for Expeditious Discharge and indicates that the Veteran was counseled two times by his company commander and three times by the Chaplain. This evidence was not addressed by either the 2021 VA examiners (or the 2016 examiner). In addition, in the September 2008 rating decision, and subsequent decisions, the RO found no evidence of a referral to the Chaplain for counseling, while such evidence was in the record. The Board further notes that in August 2020 correspondence, the Veteran's representative argued that the Veteran's service treatment records do not indicate a history of depression prior to service and that he started to experience symptoms of depression during active service which have continued to the present day. The representative argued that the Veteran's depression was caused by his active service and the Veteran sought counseling for his depression from a Chaplain during active service. The representative further argued that the Veteran was not appropriately diagnosed or treated during service. The examiner also did not address whether the Veteran's personality disorder was subject to a superimposed mental disorder during service that resulted in additional disability. In sum, a remand is required for a new examination and opinion for clarification of the Veteran's diagnoses and to determine whether the Veteran's acquired psychiatric disorder had its initial onset during his military service, based on all of the evidence of record, including the Veteran's lay statements and notations in his military personnel records that he received counseling during service. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his acquired psychiatric disorder, to include unspecified depressive disorder and unspecified personality disorder. The examiner should provide the following opinions: (a.) Whether it is at least as likely as not (greater than 50 percent probability) that the Veteran's depressive disorder is related to active service. The examiner must address the Veteran's statements that he was counseled for depression during service and the documentation indicating that such counseling during service occurred. (b.) Whether the Veteran has a diagnosis of bipolar disorder and if so, whether it is at least as likely as not (greater than 50 percent probability) that his bipolar disorder is related to his active service. (c.). Whether it is at least as likely as not (50 percent probability or more) that the Veteran's personality disorder was subject to a superimposed mental disorder during service that resulted in additional disability. If so, identify the additional disability. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, Associate Counsel 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.