Citation Nr: 21061560 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 18-49 683 DATE: October 4, 2021 REMANDED Service connection for an acquired psychiatric disorder, to include depressive disorder and cannabis use disorder (claimed as nervous condition), to include as secondary to the service-connected traumatic brain injury, is remanded. REASONS FOR REMAND The Veteran, who is the Appellant, served on active duty from November 1975 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2015 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for a nervous condition. In January 2019, the Veteran testified at a Board videoconference hearing from the RO in San Juan, Puerto Rico, before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. The Board has recharacterized the issue on appeal (claimed as nervous condition) as service connection for an acquired psychiatric disorder, to include depressive disorder and cannabis use disorder, in accordance with the United States Court of Appeals for Veterans' Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claim for benefits of one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). This case was previously before the Board in August 2017 and July 2019, where the issue on appeal was remanded. While cognizant of its responsibilities under Stegall v. West, 11 Vet. App. 268 (1998), as the Board remands the issue of service connection for an acquired psychiatric disorder for additional development, the Board need not address prior remand compliance at this time. The Veteran contends that service connection for an acquired psychiatric disorder is warranted, to include as secondary to the service-connected traumatic brain injury. In July 2019, the Board remanded the issue of service connection for an acquired psychiatric disorder to obtain a VA examination and medical opinion to help assess whether the current psychiatric disorder was caused by or aggravated by the service-connected traumatic brain injury. A VA examination and medical opinion were provided in February 2021. The VA examiner diagnosed cannabis use disorder and opined that the condition was neither caused by nor aggravated by the traumatic brain injury. Specifically, the VA examiner noted that the symptoms reported, including memory loss and difficulty establishing relationships, are not related to service but instead are related to the Veteran's cannabis use disorder. Additionally, the VA examiner noted in the examination report that the Veteran did not suffer any mental health condition after service and indicated that the Veteran has no symptoms of depression, anxiety, or other psychiatric diagnosis. While the examiner purported to provide an opinion regarding whether a psychiatric disorder was caused by the service-connected TBU, the rationale provided, i.e., that a psychiatric disorder (i.e., cannibis use disorder) is not directly related to active service addresses the theory of direct service connection, but does not address the theory of secondary service connection. The psychiatric disorder need not be directly related to active service under the theory of secondary service connection. The evidence need only establish that a psychiatric disorder was caused by or aggravated by (worsened beyond a natural progression by) the service-connected traumatic brain injury, even if the cannabis use disorder was not incurred in or otherwise related to active service. 38 C.F.R. § 3.310. Additionally, the while the VA examiner indicated that the Veteran did not have symptoms of depression or a psychiatric disorder after service, a review of the private and VA treatment records indicates that the Veteran was first diagnosed with depressive disorder not otherwise specified (NOS), as well as cannabis abuse in 2008. VA treatment records also reflect diagnostic impressions of depressive disorder NOS and depression NOS vs. substance-induced mood disorder. The most recent diagnoses in 2020 and 2021 were depressive disorder due to other medical condition and other recurrent depressive disorder. The record also reflects symptoms of depressed and dysphoric mood, sadness, irritability, anergy, restlessness, and aggressive behavior. See April 2008, July 2008 private treatment records; June 2010, August 2010, November 2016, November 2017, April 2020, January 2021 VA treatment records. The November 2017 and September 2018 VA TBI examination reports show that the VA examiners assessed some neurobehavioral affects such as problems with social interactions described as being short-fused and verbally aggressive. As the record reflects diagnosis and symptoms of a depressive disorder after service, an addendum opinion would help assess whether the depressive disorder was caused or aggravated by the service-connected TBI. The issue of service connection for a psychiatric disorder is REMANDED for the following action: 1. Return the VA medical opinion report to the VA examiner who provided the medical opinion in February 2021. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. The relevant documents in the record should be reviewed by the examiner and a detailed history of relevant symptoms should be obtained from the record. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should offer opinions: a) Is it at least as likely as not (50 percent or greater probability) that the current acquired psychiatric disorder, to include depressive disorder and cannabis use disorder, was caused by the service-connected traumatic brain injury? b) Is it at least as likely as not (50 percent or greater probability) that the current acquired psychiatric disorder, to include depressive disorder and cannabis use disorder, was aggravated by (worsened beyond its natural progression by) the service-connected traumatic brain injury? J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.