Citation Nr: 18154755 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 11-34 318 DATE: December 3, 2018 REMANDED Entitlement to service connection for an acquired psychiatric condition, to include depression and mood disorder, not otherwise specified, is remanded. Entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for an acquired psychiatric condition, to include depression and mood disorder, not otherwise specified, is remanded. Entitlement to service connection for chemical dependency is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from February 1991 to February 1995. This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In October 2014, the Board remanded this case to correct several notice errors, to obtain updated records, and to obtain a supplemental medical opinion on the Veteran’s claims for service connection. In the body of the remand, the Board noted the opinion of a July 2011 VA examiner, who stated: “The Veteran’s mood disorder may be related to his drug dependency and after a period of sobriety he may no longer experience a mood disorder. It is also possible the Veteran has a mood disorder which will become more clearly delineated once he has been sober for a period of time.” The Board observed that although the examiner opined that the Veteran’s condition might be clarified after a period of sobriety, the Veteran himself noted that he had been eighty-five days sober at the time of the examination. In addition, the Board drew attention to a February 2013 treatment record which reflected a diagnosis of depression and noted that the Veteran had been sober at that time for two years. The Board stated that “On remand, this additional evidence should be considered.” Following the Board’s remand, the RO obtained a supplementary VA medical opinion in November 2014. The Veteran also submitted a private medical opinion in December 2014 (clarifying an earlier submitted April 2013 opinion), and in December 2016, the Board obtained yet another medical opinion from a Veterans’ Health Administration (VHA) expert. None of the opinions addressed the discrepancy in the July 2011 examiner’s opinion regarding the effect of a period of sobriety on the Veteran’s diagnoses, and none addressed the question itself—what effect periods of sobriety had on the Veteran’s diagnoses, and what implications any effect might have for his service connection claims. In a May 2017 decision, the Board denied the Veteran’s claims for service connection. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2018 order, the Court granted the parties’ joint motion for remand (JMR), vacating and remanding the case to the Board for readjudication in accord with the terms of the JMR. The parties’ motion identifies three errors in the Board’s May 2017 decision which it must correct on remand. First, the motion states that the Board did not provide an adequate statement of reasons and bases for its finding that a December 2014 private opinion was of lower probative value than the opinions of VA examiners and of the December 2016 VHA expert. The Board’s May 2017 decision stated that the December 2014 private opinion failed to consider the Veteran’s chemical dependency. However, the parties’ motion points out that the December 2014 opinion was an addendum to an April 2013 opinion which had taken into account the Veteran’s chemical dependency. Secondly, the motion states that the Board erred in overlooking the failure of any medical opinion to address the issue the Board identified in its October 2014 remand: the effect of the Veteran’s periods of sobriety on his psychiatric diagnoses. Finally, the motion states that on remand, after addressing the preceding issues, the Board must readdress the application of 38 U.S.C. § 1110, in light of the guidance set forth in Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001) (holding that § 1110 only precludes compensation for alcohol abuse disabilities arising during service from voluntary and willful drinking to excess and for secondary disabilities arising from primary alcohol abuse). In order to cure the lack of objective medical evidence regarding the issue of the effect of the Veteran’s periods of sobriety on his psychiatric diagnoses, a supplementary medical opinion is necessary. Therefore, before reaching the first and third errors identified in the parties’ JMR, the Board must remand the case for a supplementary VA medical opinion. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. After completing the development outlined in Item 1., forward the Veteran’s claims file to an appropriate VA medical professional for a supplemental medical opinion. If upon review of the claims file the examiner determines that a new VA examination is necessary, an examination should be scheduled. Upon full review of the claims file (and physical examination of the Veteran, if indicated), the examiner should respond to the following: (a.) Please identify all psychiatric diagnoses other than substance abuse the Veteran has had during the claim period (February 2011 to the present). (b.) For each identified diagnosis, where possible, please indicate whether the diagnosis was made during a period of remission of the Veteran’s chemical dependency (to include alcohol, cocaine, and cannabis); i.e., please indicate whether each diagnosis was made during a period of sobriety or not. (c.) Based on your review of the claims file and your response to Item (b.), please state whether: i. Any of the Veteran’s psychiatric diagnoses are secondary to his chemical dependency; ii. The Veteran’s chemical dependency is secondary to any of his psychiatric diagnoses; or iii. The Veteran’s psychiatric diagnoses and chemical dependency are independent of each other, or bear some other relationship to each other. (d.) For any psychiatric diagnosis (including substance abuse) not secondary to another psychiatric diagnosis, please state whether it is at least as likely as not (50 percent probability or more) that the condition had its onset in or is otherwise related to the Veteran’s active duty service. The examiner must provide a fully articulated medical rational for each opinion, citing to peer-reviewed medical literature referenced in formulating it, if any. If the examiner finds that an opinion cannot be provided, this conclusion should also be clearly explained (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel