Citation Nr: 1752036 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 12-11 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression. 2. Entitlement to service connection for drug addiction, to include as secondary to depression. REPRESENTATION Appellant represented by: Adam Neidenberg, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran had active service from August 1976 to August 1977. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In September 2015, the Board remanded the case for additional development. The case has since been returned to the Board for appellate review. Following the March 2017 supplemental statement of the case (SSOC), the Veteran submitted a private medical opinion with a waiver of initial Agency of Original Jurisdiction (AOJ) consideration. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND During the July 2015 hearing, the Veteran testified that he began treatment for his substance abuse at the Miami VA Medical Center in the 1980's. See hearing transcript, p. 11. These records have not been associated with the claims file. Therefore, on remand, the AOJ should attempt to obtain such records. In addition, the Veteran was afforded a VA mental disorders examination in January 2017 in connection with his claims. The VA examiner diagnosed the Veteran with an unspecified depressive disorder with anxious distress and opioid, stimulant, and cannabis use disorders, in sustained remission. She opined that the Veteran's depressive disorder was less likely than not incurred in or caused by service. She noted that the Veteran had no history of mental health treatment prior to service and that his service treatment notes showed no evidence of mental health treatment during service. She also indicated that he denied having any psychiatric symptoms during a July 1977 separation examination. She did observe that the Veteran reported that his anxiety, depression, and insomnia began during service due to a fear of firing missiles and unexpected drills over a period of nine months while he was stationed in the Florida Keys. She also indicated that the Veteran reported that he was embarrassed by a drill sergeant during basic training and that he was knocked unconscious by another service member during a boxing match. Nevertheless, the examiner stated that, although the stressors that the Veteran described were potentially distressing, it was her experience that the described stressors would not likely lead to continued anxiety and depressive symptoms 40 years after separation from service. In addition, the examiner indicated that the Veteran's post-service treatment notes did not focus on his reported stressors. Therefore, due to a lack of evidence, she opined that the Veteran's unspecified depressive disorder with anxious distress was less likely than not incurred in or caused by his military service. The January 2017 VA examiner also indicated that the evidence, including police records, showed that the Veteran had a significant history of misconduct and drug abuse prior to service. She noted that his opioid, stimulant, and cannabis use disorders had been in remission since 1999. Therefore, she determined that the diagnoses no longer impacted his current psychological symptoms or functioning. She also opined that the Veteran's history of substance abuse was less likely than not secondary to his diagnosed psychiatric disorder. In September 2017, the Veteran submitted a private psychological evaluation in support of his claims. The psychologist indicated that she had reviewed the Veteran's claims file. She noted that the Veteran was assigned to a missile installation during service and that he was worried about attacks or strong waves setting off the missiles. She also indicated that he experienced six unexpected drills and that he was verbally abused by a superior during basic training in front of the other recruits. The psychologist diagnosed the Veteran with persistent depressive disorder based on her review of the records. She noted that the Veteran stated that his depression began during service and that he self-medicated to alleviate his psychiatric symptoms before he was diagnosed in 1999. She stated that the evidence suggests that the Veteran's experiences during service resulted in continued depression and substance abuse and that his legal issues prior to service were not medically relevant to his psychiatric condition. Specifically, the psychologist provided the following opinion: Given the service records showing an onset of mental health symptoms for [the Veteran] during service, given the medical records indicating the severity and chronicity of [the Veteran's] psychological symptoms until the present, and given the lack of any indication that [the Veteran] had a mental health disorder prior to joining the military, the evidence in the record indicates that it is at least as likely as not that [the Veteran's] depression is the direct result of his service. His psychological difficulties have persisted until the present day, as evidenced by statements as well as the medical records demonstrating a continuity of symptomatology. It is also at least as likely as not that [the Veteran's] substance abuse is secondary to his Persistent Disorder. He explained that he utilized substances between 1977 and 1999 to self-medicate in order to alleviate his psychiatric symptoms. There is no evidence of substance abuse prior to service. However, the Board notes that the private opinion appears to be based on an inaccurate factual premise. In this regard, his service records do not document the onset of mental health symptoms. Therefore, the Board finds that an additional medical opinion is needed. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a psychiatric disorder and a substance abuse disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records, to include records from the Miami VA Medical Center dated before March 2012 and since February 2017. A specific request should be made for any treatment records pertaining to treatment for substance abuse in the 1980's. 2. After completing the foregoing development, the case should be returned to the January 2017 VA examiner (or if she is unavailable, to another suitably qualified examiner) for a medical opinion to determine the nature and etiology of any depressive disorder and substance abuse disorder that may be present. An additional examination of the Veteran should be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should specifically consider the September 2017 private psychological evaluation submitted by the Veteran in support of his claims. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The Veteran has asserted that his depression began during service after he was ridiculed and harassed by a drill sergeant during boot camp. He has testified that he was verbally, physically, and psychologically abused during boot camp. In addition, the Veteran described feeling some responsibility for a fellow soldier's death after the soldier reported to his aid station before the soldier subsequently committed suicide. The Veteran also related that he was knocked unconscious during a boxing match during service. The Veteran has also contended that his depression led to his drug abuse and that he self-medicated with drugs following service. The examiner should note that, during the July 2015 hearing, the Veteran reported being caught with marijuana and being charged with fraudulent use of a credit card prior to service. He denied having any behavioral problems during service other than being discharged for fraudulent concealment of convictions prior to service. His service treatment records are negative for any complaints, treatment, or diagnosis of depression or drug addiction. A July 1977 separation examination found no psychiatric abnormalities, and the Veteran denied having a medical history of frequent trouble sleeping; depression or excessive worry; and nervous trouble of any sort. VA treatment records show psychiatric treatment for polysubstance dependence in full sustained remission, a dysthymic disorder, and a depressive disorder not otherwise specified. VA treatment records also suggest that the Veteran has experienced symptoms of depression secondary to current life stressors that included concerns related to living with HIV and HCV. See, e.g., December 2013 through February 2014 VA psychology notes. The examiner should indicate when the Veteran's depressive and substance abuse disorders manifested and whether they are at least as likely as not related to his military service. The examiner should also state whether it is at least as likely as not that the Veteran has a drug addiction secondary to any diagnosed psychiatric disorder. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should review the medical opinions to ensure that they are in compliance with this remand. If the report is deficient, the AOJ should implement corrective procedures. 4. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 5. When the development has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the appellant and his representative should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).