Citation Nr: 21001664 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-06 212 DATE: January 11, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include substance induced mood disorder, cannabis and cocaine abuse and alcohol dependence, schizophrenia, bipolar disorder, and depression, is remanded. Entitlement to service connection for arthritis, rheumatoid (atrophic) (now claimed in right knee) is remanded. Entitlement to service connection for residuals of a head injury (also claimed as hit in head with driver’s APC hatch) is remanded. Entitlement to service connection for a chronic neck condition, to include as secondary to head injury, is remanded. Entitlement to service connection for bone spurs left heel is remanded. Entitlement to service connection for bone spurs right heel is remanded. REASONS FOR REMAND The Veteran had active duty service with the United States Army from September 1975 to February 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Board has more broadly characterized the claimed disability to include other psychiatric disabilities, under Clemons v. Shinseki, 23 Vet. App. 1 (2009), based on recent medical records reflecting inpatient and outpatient psychiatric treatments and medications. As such, the Veteran’s claim has been characterized as service connection for an acquired psychiatric disability. The Veteran provided testimony in January 2020 before the undersigned. A copy of the transcript is associated with the claims file. If, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the subsection addressing reopening claims. 38 C.F.R. § 3.156 (c)(3). Service department records that are relevant to the claimed in-service event, injury, or disease, are such § 3.156(c) records. Here, initially in November 2012, the RO denied the claims for service connection for substance induced mood disorder, to include cannabis and cocaine abuse and alcohol dependence; and residuals of a head injury (also claimed as hit in head with driver’s APC hatch); and in September 2014 denied service connection for arthritis, rheumatoid. In denying the claims, the RO did not obtain the Veteran’s service personnel records prior to denying the claim. The only service record available at such time was the December 1979 separation examination. A June 2012 VA memo indicates that the original service treatment records from September 1975 to February 1980 were unavailable after several attempts to obtain them. In March 2015, personnel records (particularly noting separation from service under Chapter 9 for alcohol or drug abuse) and service records (September 1975 entrance examination) were associated with the claims file. These records are sufficiently relevant to the claim to warrant consideration of the claim as filed from the original date of claim on November 22, 2010. Hence, reopening of the claims is not required. Unfortunately, most of the Veteran’s service treatment records are still unavailable. See May 2015 Subsequent Development Letter. It is unclear whether they even exist, as only the entrance examination was most recently obtained as noted above. The Board acknowledges that the VA has a heightened duty to assist in these cases. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); see also Cromer v. Nicholson, 19 Vet. App. 215 (2005). As such, the Board will proceed with the issues on appeal as explained below. The Board also notes that, in November 2017, the Veteran’s previous representative filed a motion to withdraw as representative under 38 C.F.R. § 20.608. The representative noted a copy of the motion would be mailed to the Veteran. In January 2018, the Board granted the representative’s motion to withdraw. As such, the Veteran proceeds with his appeal unrepresented. 1. Entitlement to service connection for an acquired psychiatric disability, to include substance induced mood disorder, cannabis and cocaine abuse and alcohol dependence, schizophrenia, bipolar disorder, and depression is remanded. 2. Entitlement to service connection for arthritis, rheumatoid (atrophic) (now claimed in right knee) is remanded. 3. Entitlement to service connection for residuals of a head injury (also claimed as hit in head with driver’s APC hatch) is remanded. 4. Entitlement to service connection for a chronic neck condition, to include as secondary to head injury, is remanded. 5. Entitlement to service connection for bone spurs left heel is remanded. 6. Entitlement to service connection for bone spurs right heel is remanded. The Veteran contends that his psychiatric, right knee, head injury, neck, and bilateral bone spurs conditions were incurred in service. He also contends that his neck condition is secondary to his head injury. See December 2014 Statement in Support. Although the Board regrets the delay, a remand is warranted to afford the Veteran a VA examination for his claimed conditions. With regard to the psychiatric disability claim, generally, compensation shall not be paid if a disability is the result of the veteran’s own willful misconduct, or abuse of alcohol or drugs. 38 U.S.C. § 1110. Thus, given the nature of this claim, entitlement to service connection on a direct basis for cannabis, cocaine abuse, and alcohol dependence is not available. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that 38 U.S.C. § 1110 does not preclude compensation for an alcohol or drug abuse disability secondary to a service-connected disability, or the use of an alcohol or drug abuse disability as evidence of the increased severity of a service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), reh’g denied, 268 F.3d 1340 (Fed. Cir. 2001) (en banc order). The Federal Circuit cautioned that Veterans may only be awarded compensation if they could adequately establish that their alcohol or drug abuse disability was secondary to or caused by their primary service-connected disorder. Service connection remains precluded for primary alcohol and drug abuse and related disabilities that were due to willful wrongdoing. Id. at 1381. As such, service connection may be awarded in this case upon competent evidence that the Veteran’s alcohol abuse was caused or aggravated by any service-connected disorder. The Board finds that if service connection is established for any acquired psychiatric disorder, a nexus opinion is required directly addressing the inquiry of whether the Veteran’s alcohol or drug use disorder was caused or aggravated by any acquired psychiatric disorder, to include schizophrenia, bipolar disorder, or major depressive disorder, as accompanied by a detailed rationale. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability is insufficient to address the question of aggravation under § 3.310(b)). The Veteran has not yet been afforded an examination for his claimed conditions. Service treatment records (STRs) are very limited but the September 1975 and December 1979 separation examination are both silent for complaints, treatment, or diagnosis for any psychiatric, right knee, head injury, neck, or bone spurs condition. The medical evidence of record demonstrates that the Veteran has the following current conditions: recurrent, severe major depressive disorder; mood disorder; schizophrenic disorder; cocaine and alcohol dependence; bipolar disorder; arthritis of the right knee; traumatic brain injury (TBI); cervicalgia (neck pain); and bone spurs. See March 2014 Third Party Correspondence and June 2018 CAPRI. Furthermore, the Veteran has competently and credibly reported that his conditions are related to service. The Veteran reported an in-service injury that involved an APC truck, between 1976 to 1977, which struck a ditch and caused injuries to his head and knee. He also reported that he had his toenails removed twice to alleviate pressure from his bone spurs. With regard to his mental condition, the Veteran reported that he was trained to kill in service and subsequently developed behavioral problems as a result thereof. See January 2020 Hearing Transcript. Furthermore, a March 2015 personnel record demonstrates the Veteran was recommended for Chapter 9 discharge from service due to drug abuse. VA and private medical records reflect ongoing treatments for his claimed conditions. During his January 2020 Board hearing, the Veteran indicated that all his claimed conditions have bothered him since service. Thus, there is evidence and/or symptoms of his claimed current disabilities, an in-service event, and an indication that the disabilities may be associated with service. Accordingly, a remand is required for an examination to determine the nature and etiology of the Veteran’s claimed psychiatric, right knee, head injury, neck, and bone spurs conditions. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination by an appropriately qualified clinician to determine the nature and etiology of the Veteran’s acquired psychiatric disorder, to include substance induced mood disorder, cannabis and cocaine abuse and alcohol dependence, schizophrenia, bipolar disorder, and depression. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. Following review of the record and examination of the Veteran, the examiner should identify all acquired psychiatric disabilities present. a. For each identified acquired psychiatric disability, provide an opinion whether it is at least as likely as not (a 50 percent probability or more) that the Veteran’s current acquired psychiatric disability was incurred in or is otherwise related to his time in service. b. If PTSD is diagnosed, the examiner should identify the specific stressors that led to the condition. The examiner is directed to the Veteran’s lay contention that his psychiatric symptoms are related to his training to kill during service. c. The examiner should also identify whether the Veteran has demonstrated an alcohol or drug use disorder at any time during the appeal period. d. If so, opine whether it is at least as likely as not (50 percent probability or more) that the Veteran’s alcohol or drug use disorder was caused or aggravated by any psychiatric disorder related to service? Causation and aggravation are independent concepts and should have separate findings and rationales. Aggravation does not require that there be “permanent” worsening of the nonservice connected disability. The examiner should indicate if there is clear medical evidence establishing that alcohol or drug abuse is caused by the Veteran’s psychiatric disability, and alcohol or drug abuse disability is not due to willful wrongdoing. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. 2. Schedule the Veteran for a VA examination by an appropriately qualified clinician to determine the nature and etiology of the Veteran’s right knee arthritis. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. (a) The examiner must determine all right knee disabilities (to include arthritis) present during the appeal period. (b) The examiner must also address whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right knee disability/arthritis had its onset during service or is otherwise related to the Veteran’s active service. The examiner must provide a rationale supported by facts and medical principles for any opinion provided. If an opinion cannot be provided without resorting to speculation, then the examiner should so state and explain why this is so. 3. Schedule the Veteran for a VA examination by an appropriately qualified clinician to determine the nature and etiology of the Veteran’s residuals of a head injury and neck disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. (a) For any residuals of head injury found, the examiner must indicate whether it is at least as likely as not (50 percent or greater probability) that it was incurred in or is related to service. (b) If residuals of head injury are found to be related to service, the examiner must determine whether it is at least as likely as not (50 percent probability or more) that the Veteran’s neck condition is (i) proximately due to his service-connected residuals of head injury or any other service-connected disability, or (ii) aggravated by his service-connected residuals of head injury or any other service-connected disability. Causation and aggravation are independent concepts and should have separate findings and rationales. Aggravation does not require that there be “permanent” worsening of the nonservice connected disability. (c) The examiner must determine whether it is at least as likely as not (50 percent probability or greater) the neck condition was incurred in or is related to the Veteran’s active service. In providing the opinion, the examiner must consider the Veteran’s contentions regarding his APC accident between 1976 to 1977 during service. The examiner must provide a rationale supported by facts and medical principles for any opinion provided. If an opinion cannot be provided without resorting to speculation, then the examiner should so state and explain why this is so. 4. Schedule the Veteran for a VA examination by an appropriately qualified clinician to determine the nature and etiology of the Veteran’s bilateral bone spurs. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. The examiner must determine whether it is at least as likely as not (50 percent probability or greater) the bilateral bone spurs were incurred in or related to the Veteran’s active service. The examiner should consider the Veteran’s statements that he had his toenails removed twice during service to help alleviate pressure from his feet. The examiner must provide a rationale supported by facts and medical principles for any opinion provided. If an opinion cannot be provided without resorting to speculation, then the examiner should so state and explain why this is so. 5. Then, readjudicate the Veteran’s claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, 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.