Citation Nr: 1754045 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 10-23 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), adjustment disorder with mixed anxiety and depressed mood. 2. Entitlement to service connection for substance abuse disorder as secondary to an acquired psychiatric disorder. 3. Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Veteran represented by: Brendan B. Garcia, Attorney ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 1974 to February 1981, with an additional period of service that is not a qualifying period of active duty for benefits purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2009 and October 2014 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran's claim of service connection for PTSD has been recharacterized to encompass all acquired psychiatric disorders reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran previously submitted claims of entitlement to service connection for a substance abuse disorder and a psychiatric disorder (PTSD and bipolar disorder) that were denied in October 2003 rating decision and September 2007 rating decisions, respectively. The substance abuse claim was denied because there was no evidence of a physical or mental disability resulting from the Veteran's reported involuntary drug intoxication in service and because any substance abuse noted during service constituted willful misconduct. The psychiatric claim was denied because the Veteran failed to submit stressor information that could be verified or show evidence of a psychiatric disorder in service. These rating decisions became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period. See 38 C.F.R. § 3.156(b). In connection with the Veteran's claim to reopen, the Veteran provided additional statements regarding his reported stressors that include additional information not previously considered. Moreover, the Board notes that service connection for a substance abuse disorder may be granted where that disorder is secondary to a service-connected disability, such as a psychiatric disorder. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claims. 38 C.F.R. § 3.156(a). The Board notes that issues in addition to the ones listed on the title page are in appellate status; however, only the issues noted above have been certified to the Board. Although certification does not serve to either confer or deprive the Board of jurisdiction over an issue, certain procedural steps are taken when an appeal is certified to the Board, such as notification to the appellant and his or her representative of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a). As the required notification has not been sent concerning the additional issues currently in appellate status, the Board declines to take any further action on them at this time. This delay is needed to ensure that the Veteran is afforded full due process in the matter. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Bilateral Foot Disorders The Board finds that a new VA examination is warranted to determine the etiology of the Veteran's current bilateral foot disabilities. The Veteran reported that he suffered a bilateral heel contusion in service (November 2010 Written Statement), and this injury is documented in a September 1974 service treatment record (STR). See September 9, 1974 STR (noting heel contusion bilateral requiring Veteran be on light duty for 48 hours). The VA examiner performing the January 2012 VA Examination opined that the Veteran's current bilateral foot disabilities are not related to the plantar warts that the Veteran had in service, but did not address whether any of his current disorders are related to the bilateral heel contusion he suffered. As such, a new VA examination must be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). PTSD/Substance Abuse A new VA examination is also required concerning the Veteran's psychiatric disorder and substance abuse. The Veteran seeks service connection for an acquired psychiatric disorder, including PTSD and a substance abuse disorder. His VA and private medical records show that he has received multiple psychiatric diagnoses during the appeal period. He reports that his psychiatric symptoms began during service and have been recurrent since that time. He also reported experiencing stressful events during service that caused or exacerbated his psychiatric symptoms, including an incident where he was given a drug by "Republic of China" marines while on a winter training exercise near the South Korean Demilitarized Zone. See March 2007 Written Statement; see also October 2017 Correspondence. The Board notes that no development has been undertaken in an effort to corroborate this reported stressor and additionally, this stressor was not addressed by the examiner performing the June 2014 VA Examination. A new examination and medical opinion should be obtained addressing the Veteran's contentions. See Barr, 21 Vet. App. at 312. The Board further notes that although the VA examiner opined that the Veteran's psychiatric disorders were not caused by or a result of service, the examiner did not provide an adequate rationale for this opinion. Specifically, the examiner found that the Veteran's psychiatric disorders were not related to service because his cocaine addiction developed after his separation from service and the Veteran identified his childhood abuse as largely responsible for his symptoms. However, the examiner did not address the Veteran's contention that his psychiatric symptoms began or worsened during service, that he used illegal drugs as a coping mechanism, and that although he reported using cannabis throughout his active service, this use did not affect his level of functioning for a number of years until he was ultimately discharged from service under "Other than Honorable" conditions in 1983. In this regard, the Board notes that even if the Veteran's psychiatric disorders are related in part to his childhood experiences, service connection may still be granted if his psychiatric symptoms began worsened beyond their normal progression during his active duty service. 38 C.F.R. §§ 3.303, 3.306; Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"). As this matter is being remanded, all outstanding VA medical records should be obtained. Sullivan v. McDonald, 815 F.3d 786 (2016). Moreover, the Veteran should be given an opportunity to identify any private medical records he would like considered in connection with his appeal. 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records. 2. Ask the Veteran to identify any private medical care providers who treated him for a psychiatric or foot disability. After securing any necessary authorization, obtain records from any identified providers. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service psychiatric and foot symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Make attempts to verify the Veteran's reported stressors in accordance with the procedures set forth in the VA Adjudication Procedures Manual. 5. After completing the development in paragraphs 1-4 above (to the extent possible), schedule the Veteran for an appropriate VA examination to address the nature and etiology of his psychiatric disorder(s). The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. After a review of the claims file, the examiner should address the following: (1) whether the Veteran's symptomatology and presentation at any point during the appeal period (May 2014 to the present) meets the diagnostic criteria for PTSD; and, if so, the underlying stressor supporting that diagnosis; (2) whether it is at least as likely as not that any of the Veteran's psychiatric disorders diagnosed at any point during the appeal period (May 2014 to the present) had its onset in service or is otherwise related to an event, injury or disease incurred in service. In reaching his or her conclusions, the VA examiner should specifically review and consider the Veteran's contention that his psychiatric symptoms began or worsened during service, that he used illegal drugs as a coping mechanism, and that although he reported using cannabis throughout his active service, this use did not affect his level of functioning until he was ultimately discharge from service under "Other than Honorable" conditions in 1983. 6. After completing the development in paragraphs 1-4 above (to the extent possible), schedule the Veteran for an appropriate VA examination to determine the current nature, onset and etiology of his bilateral foot disorders. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. After a review of the claims file, including the lay statements provided by the Veteran, the examiner should state whether it is at least as likely as not that any of the Veteran's diagnosed foot disorders (1) had their clinical onset during active service or within one year after his separation from service, or (2) are otherwise related to an event, injury or disease incurred in service. In reaching his or her conclusions, the VA examiner should specifically review and consider the lay statements of the Veteran concerning the bilateral heel injuries he sustained in service, as well as the September 9, 1974 STR documenting bilateral heel contusion requiring Veteran be on light duty for 48 hours. If any opinion requested above cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 7. After completing the above development, including any additional development that may be warranted, readjudicate the appeal. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).