Citation Nr: 21074077 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-43 736 DATE: December 14, 2021 ORDER Entitlement to service connection for depression is granted. FINDING OF FACT The Veteran's depression had its initial onset during his active service. CONCLUSION OF LAW The criteria for service connection for depression 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 had active service from January 1975 to September 1976. The Veteran died in April 2012. Appellant is the Veteran's daughter. The AOJ granted the Appellant's request for substitution in October 2014. Thus, the claim on appeal is properly before the Board with the Appellant substituting for the deceased Veteran. The appeal comes before the Board of Veterans' Appeals (the Board) from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in June 2019. There is a question as to whether the Veteran is currently represented in the present matter. Following remand, this case was re-certified/returned to the Board in May2020. In May 2021, the Veteran's attorney submitted a motion for Withdrawal of Representation. Under VA regulation, when a request to withdraw is received after the appeal is certified to the Board, the representative is obligated to present a motion to the Board in writing, demonstrating good cause to withdraw as the Veteran's representative. See 38 C.F.R. § 20.6(a)(2) (effective February 19, 2019) (formerly 38 C.F.R. § 20.608 (2018)). Good cause for such purposes is the extended illness or incapacitation of the representative; failure of the appellant to cooperate with proper preparation and presentation of the appeal; or other factors which make the continuation of representation impossible, impractical, or unethical. Id. The 2021 motion to withdraw failed to comply with the provisions as set forth under 38 C.F.R. § 20.6(a)(2) for a post-certification withdrawal of representation. Specifically, the Veteran's attorney has not presented any good cause for the attempted withdrawal of representation. The attorney merely cited to 38 C.F.R. § 14.631(c), a provision which is inapplicable post certification. Given the above, the Board concludes that James Gregory Fausone, continues to represent the Appellant in the present matter. 1. Entitlement to service connection for a mental health disability, other than personality disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131 ; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). There is conflicting evidence as to the presence of a current disability prior to the Veteran's death. An August 2011 examiner determined that the criteria for a diagnosis of major depressive disorder were not met. The examiner found that the appropriate diagnosis of histrionic personality disorder. However, in a more recent November 2019 opinion, which was based on a complete review of the claims file, another VA examiner concluded that the Veteran had suffered from chronic depression. Other VA treatment records confirm a diagnosis of depression prior to the Veteran's death. Resolving doubt in favor of the Veteran/Appellant, the Board finds that a diagnosis of major depressive disorder was established prior to the Veteran's death. Additionally, service records document evaluation and treatment for psychiatric impairment. The August 2011 and November 2019 opinion both document and discuss in-service psychiatric complaints as well disciplinary problems. What remains is nexus. In November 2019 a VA examiner opined that the Veteran suffered from depression, separate and distinct from his personality disorder, while in-service. The examiner explained that the Veteran's in-service depression ultimately culminated in his need for psychiatric hospitalization and military discharge in 1976. The examiner also clarified that post-service, the Veteran continued to suffer from, and be treated for depression. The above opinion supports that the Veteran suffered from depression etiologically related to service prior to his death. The Board finds the November 2019 opinion highly probative as it was predicated on consideration of the record to include lay and medical evidence. The opinion also mirrors and/or supports lay reports of the Veteran's family that he suffered from on-going psychiatric symptomatology post-service until his death. The negative opinions of record are no more or less probative. Following consideration of the above, and affording the Appellant/the Veteran all benefit of the doubt, entitlement to service connection for depression is granted. The Board notes that the appeal included the Appellant's contention, in pertinent part, that the Veteran had a personality disorder that developed during or because of his active service. STRs reflect that following a psychiatric evaluation, the Veteran was diagnosed with personality disorder. There is also some evidence showing that the Veteran was diagnosed as having histrionic personality disorder prior to his death. Personality disorders do not constitute a disability for VA compensation purposes. 38 C.F.R. §§ 3.303, 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Moreover, because service connection has now been established for depression, which was the only diagnosed acquired psychiatric disorder of record, the question of aggravation of the personality disorder resulting in additional disability has become a moot. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, 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.