Citation Nr: 21000693 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-00 001A DATE: January 6, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with mixed disturbance of emotions and conduct and secondary cocaine dependence, is granted. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a neurological disability of the bilateral lower extremities is remanded. FINDING OF FACT The Veteran’s adjustment disorder with mixed disturbance of emotions and conduct had its onset during a period of honorable active service, and his cocaine dependence is proximately due to his psychiatric disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for adjustment disorder with mixed disturbance of emotions and conduct and secondary cocaine dependence, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the United States Marine Corps from February 1982 to March 6, 1985, including 30 or more days of service at Camp Lejeune. He also had active service from March 7, 1985 to February 1987 characterized as under conditions other than honorable, and thus no Department of Veterans Affairs (VA) compensation benefits may be paid for disability due to injury or disease in this period of service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by an Agency of Original Jurisdiction (AOJ) of the VA. In January 2019, the Board remanded the appeal for additional development. The Board has broadened and recharacterized the Veteran’s claims as reflected above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The October 2020 Supplemental Statement of the Case (SSOC) does not address the issue of entitlement to service connection for an acquired psychiatric disorder. However, as discussed below, the evidence of record supports a full grant of the benefit sought on appeal. Thus, the Veteran is not prejudiced by the Board addressing the merits of that issue. In this regard, the issue of competency has not been adjudicated by the AOJ and is not before the Board. See October 2019 Psychiatric Examination Report at 10 (Competency) (Veteran is not capable of managing his financial affairs). 1. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with mixed disturbance of emotions and conduct and secondary cocaine dependence, is granted. The Veteran asserts that his acquired psychiatric disorder manifested during his period of honorable service. See, e.g., December 2015 Correspondence. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Veteran has multiple co-morbid psychiatric diagnoses. See, e.g., October 2020 Active Problems List (chronic posttraumatic stress disorder (PTSD), depressive disorder, and substance use disorders); May 14, 2019 VA Mental Health Intake Note (unspecified anxiety disorder, unspecified depressive disorder, and substance use disorders). Thus, the Veteran is shown to have a current acquired psychiatric disorder, and the first element of service connection is met. As noted above, the Board has expanded the Veteran’s claim to consider all psychiatric diagnoses of record. With respect to the second element of service connection, an event, injury, or disease during the service, the Veteran reports an onset of mental health symptoms in service. See, e.g., December 2015 Correspondence. Furthermore, the Veteran reported that he was falsely accused in April 1986 and that he began self-medicating his psychiatric symptoms with drugs, leading to his discharge. See December 2011 VA Form 21-0781. However, compensation may only be awarded if the evidence links a current disability to an injury, event, or disease during the Veteran’s period of honorable service, which would exclude any event, injury, or disease that occurred in April 1986. See 38 C.F.R. § 3.12. In October 2019, the Veteran presented for a psychiatric examination. The VA-contracted examiner noted the Veteran’s reported stressors included his routine military duties such as weapons use, as well as the false accusation reported by the Veteran. The examiner determined that the Veteran’s reported stressors did not meet the full criteria for PTSD and explained that the Veteran’s symptoms were better explained through a diagnosis of adjustment disorder with mixed disturbance of emotions and conduct and co-morbid stimulant use disorder. The examiner opined that it was at least as likely as not that the Veteran’s adjustment disorder and stimulant use disorder began during his period of active duty service ending on March 6, 1985. See October 2019 Psychological Examination Report. The examiner explained that the Veteran had no mental health issues prior to service and his psychiatric symptoms were related to his reported stressors in service. See October 2019 Medical Opinion. Here, the evidence shows that the Veteran has a current diagnosis of an acquired psychiatric disorder. Moreover, the examiner links this disorder to the Veteran’s honorable military service. Critically, the Board observes that while one of the stressors noted by the examiner occurred in 1986, during the Veteran’s other than honorable period of service, other stressors are consistent with the Veteran’s honorable service. Moreover, the examiner unambiguously linked the Veteran’s current disability to the Veteran’s period of service “that concluded in March 1985,” i.e. his period of honorable service. Accordingly, direct service connection for an acquired psychiatric disorder, to include adjustment disorder with mixed disturbance of emotions and conduct, is warranted. Moreover, as the Veteran’s private treatment records indicate that his cocaine dependence is secondary to his diagnosed psychiatric disorder, secondary service connection for his substance use disorder is also warranted. See February 2015 Georgia Department of Corrections Record (diagnosing cocaine dependence secondary to the Veteran’s psychiatric disorder). 38 C.F.R. § 3.310.   REASONS FOR REMAND 2. Entitlement to service connection for a bilateral knee disability is remanded. 3. Entitlement to service connection for a neurological disability of the bilateral lower extremities is remanded. The Board regrets the delay, but remand is necessary. In this regard, the Veteran identified outstanding VA treatment records during the examination of bilateral knee condition. See September 2020 Knee Examination Report (Medical History) (Veteran reports treatment at Lake City VA clinic for knee pain in 1988). On remand, all outstanding VA treatment records should be secured. Additionally, the Board observes that medical records provided by the Social Security Administration (SSA) included additional records from corrections departments. Inasmuch as additional records may have been generated after these were provided to the SSA, the Veteran should be afforded an opportunity to identify all non-VA providers, to include correctional facilities. Once any additional records are secured, addendum opinions should be obtained from examiners who have access to the complete history of the Veteran’s disabilities. The matters are REMANDED for the following action: 1. Secure all outstanding VA treatment records. The Veteran has reported receiving treatment at the Lake City, Florida VA clinic since 1988, and subsequently at other VA clinics in Georgia and Florida. If VA medical records dating to 1988 are unavailable, the AOJ should place a memorandum in the file documenting this determination and advise the Veteran that the records are not available. 2. With any necessary assistance from the Veteran, secure any outstanding relevant private treatment records, to include any outstanding records from correctional facilities (including the Georgia Department of Corrections). 3. After completing #1 and #2, refer the claims file to an examiner for preparation of an addendum opinion as to the etiology of the Veteran’s bilateral knee disability. After reviewing the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral knee disability had its onset during the Veteran’s period of active duty service ending March 1985 or is otherwise etiologically related to the Veteran’s period of active duty service ending in March 1985, to include as a result of the cumulative impact of the Veteran’s military duties. The examiner should discuss the Veteran’s report that his knees began hurting in 1987 after five years of military activity and that his pain has continued to the present day. See September 2020 Knee Examination Report. The examiner is advised that a medical opinion premised solely on the absence of evidence of treatment or a lack of “continuity of care” will be returned as legally inadequate. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. 4. After completing #1 and #2, refer the claims file to an examiner for preparation of an addendum opinion as to the etiology of the Veteran’s claimed neurological disorder of the bilateral lower extremities. After reviewing the claims file, the examiner should address the following: (a) Please diagnose all neurological disorders of the lower extremities. (b) For each disorder diagnosed in sub-part (a), please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset during the Veteran’s period of active duty service ending March 1985 or is otherwise etiologically related to the Veteran’s period of active duty service ending in March 1985, to include as a result of the cumulative impact of the Veteran’s military duties and/or conceded exposure to contaminated water at Camp Lejeune. (c) In addressing sub-part (b), if the etiology of a disorder is attributed to another disorder, please specifically state the underlying disorder and provide an opinion as to whether the underling disorder is attributable to service. For example, if the examiner diagnoses sciatica and the examiner attributes sciatica to a back disorder, please opine as to whether the back disorder is related to service ending March 1985, to include as a result of the cumulative impact of the Veteran’s military duties and/or conceded exposure to contaminated water at Camp Lejeune. The examiner is advised that a medical opinion premised solely on the absence of evidence of treatment or a lack of “continuity of care” will be returned as legally inadequate. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, 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.