Citation Nr: 21062461 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 09-02 945 DATE: October 7, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the Veteran's service-connected Crohn's Disease or back disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from April 1987 to May 1992. The Veteran also served in the Army National Guard of New Hampshire from March 1993 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from an October 2008 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In March 2012, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). In January 2016, VA notified the Veteran that the VLJ who conducted his hearing was no longer employed at the Board, and it offered him an opportunity for an additional Board hearing. In February 2016, the Veteran declined another Board hearing. The Board has remanded this appeal eight times April 2011, February 2013, April 2014, March 2016, August 2018, and April 2019, February 2020, and October 2020. The Board regrets the delay, but it must remand again. In 2020, the Board reviewed the case twice (February and October), and it found the VA compensation examination reports and addendum opinions from June 2016, March 2018, October 2019, February 2020, and July 2020 inadequate. Therefore, it remanded for a new addendum opinion. VA obtained that opinion in March 2021. The medical professional who reviewed the file opined on both direct and secondary theories of entitlement. The Board will also focus on these theories. Direct The professional opined: Based on review of the available records there was insufficient evidence to support this claim. The claimant's mental health condition has been evaluated by multiple providers including VAMC providers and VA C&P examiners since 1997. The claimant has been assigned a variety of diagnoses including major depressive disorder with psychotic features, alcohol dependence/abuse/use disorder, unspecified depressive disorder (a.k.a. depressive disorder not otherwise specified), delusional disorder, and borderline personality disorder. ***The providers have linked his symptoms predominantly to various life stressors including criminal arrest, relationship trouble (divorce, break-ups, involvement with partners who were abusive), the custody battle for his daughter, financial strain, and job stress.*** The providers have not linked his symptoms predominantly to his in-service claimed stressors, including stress from scheduling aircraft maintenance during his service, evacuating people from an erupting volcano in the Philippines during his service, gas and chemic attack warfare drills during his service in the Persian Gulf, or his service otherwise. ***[The Board has bolded this passage to highlight the emphasis of this Remand]*** In reference to the specific records identified by the BVA, a single record or handful of records do not outweigh the preponderance of records documented in the claimant's file. The claimant's assertion on his Gulf War Registry form that the onset of his depression, mood swings and nervousness began 8-10 months after his return from the Persian Gulf is insufficient evidence of a nexus. A review of the claimant's VA Mental disorders exams does not provide evidence of a nexus. The 2020 Mental disorders DBQ noted claimant was first seen in 1985 for depression in the context of life stressors. The 2013 Mental disorders C&P linked his depression to suicidal ideation experienced in the context of his divorce. There was no indication in the C&P of a nexus with his military service. Similarly, a nexus with his military service was not supported in the 2016 Mental Disorders DBQ. This report goes into detail about the claimant's report of his ability to cope with the stressors and responsibilities of his military job. And he experienced problems managing stress when he lost his military job in 1993. The 2016 DBQ noted the claimant began seeing mental health providers in 1993-1994 and "his issues led to his divorce-there were problems at home, personal and work." Records of treatment in 1993-1994 was not found in the available records to corroborate his report of onset. The C&P noted he was divorced in 1995 and mental health providers assigned a diagnosis of major depression, anxiety, and Crohn's with suicidal ideation. The claimant's report during the October 2012 hearing that he [was] struggling adapting to civilian life was not repeated or confirmed during the above-noted Mental Disorders examinations. Nor was it confirmed in the VAMC records. In summary, based on review of the available records, the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As a threshold matter, the Board highlights that it believes the reference to 1985 is a typo. The February 2020 VA examiner cited 1995 in her report. The Board, considering the March 2021 opinion, has reexamined the evidence. It has determined that the evidence raises an etiological question that warrants remand. To begin, the Board cites the March 2018 VA examination report. In finding a negative nexus to service, the examiner opined: Over the past 20+ years, the veteran has been seen at several VA facilities/in several VA Mental Health Departments and, at each facility, he has often been evaluated and treated by multiple Mental Health Providers. Over the course of this extensive treatment and the many evaluations involved, there is no evidence indicating that the veteran's depression is secondary to Crohn's Disease. Most of the many VA MH Providers who have evaluated and treated the veteran have diagnosed him with some form of Depression and all have identified him as at least having depressive symptoms, though have indicated that his depression was secondary to/due to or the result of his Crohn's disease. ***More common sources for the veteran's depression identified by these providers has been the various life stressors the veteran was facing at the time, as well as his inadequate coping patterns. ***[The Board has bolded this passage to highlight the emphasis of this Remand]*** ***Today's exam yielded a similar conclusion and remaining source of upset/depressed mood for the veteran at this time in his life, for example, is the distant relationship the veteran has with his daughter, not his Crohn's disease. ***[The Board has bolded this passage to highlight the emphasis of this Remand]*** In general, the veteran's relationships and other life circumstances are improved and generally favorable and his medications appear to be of benefit. The veteran appears to be doing well, his symptoms generally appear to be mild and having minimal impact on his functioning. The veteran himself made statements to this effect in exam today and he describes his depressive symptoms as considerably improved. His VA MH Prescriber has also found the veteran to be significantly improved. In his last contact with his VA MH Prescriber (earlier this month) she noted: "He has been doing quite well. He is pleasant and easy to engage. He is appropriately attired and groomed. He has good eye contact. He exhibits normal psychomotor activity. Speech is of normal rate, tone and volume. Gait is normal. Mood is "good." Affect is pleasant. Thought process is linear and goal-directed. There is no evidence of suicidal or homicidal ideation. No evidence of psychosis. Concentration and memory are intact. Intelligence is at least average. Judgment and insight are good." The veteran's improvement is such that his VA MH Prescriber felt that the veteran no longer required such specialty care (Psychiatry) and therefore management of his psychotropic medications has been referred back to the veteran's PCP. That being the case, as the veteran is doing relatively well and is experiencing greatly lessoned/minimal symptoms at this time, it cannot be said that his Depressive Disorder has been aggravated beyond its natural course by his service-connected conditions. Beyond these opinions, the Board also highlights the Veteran's October 2012 Board hearing. The pertinent exchange at the hearing was: Q. Okay. So that's some of the issues that happened with the job, anger and irrationality A. Yeah. Q. And poor decisions led to you quitting. A. I did have an incident with another op-worker, you know have a run-in, a verbal run-in with the boss or another co-worker and it would be you know bad enough where they were thinking about letting me go and sometimes I can't say what triggers it I just get more angry or more frustrated or more stressed than normal people do. MR. KIDD: Okay. JUDGE to Veteran: Q. Did you have issues with this in the service? A. I believe I may have sir. You know, I had a gunny and a couple of co-workers I didn't get along with and I didn't know how to appropriately deal with it as well. But I did my job and followed orders and did what I could to you fulfill my part of the mission, my enlistment. Q. Were you ever disciplined in service for any type of behavior? A. Yes sir. I had made a dumb decision, a totally irrational not even thinking. I had called in a bomb threat with a co-worker, although it was supposed to be a joke. I mean I didn't walk with explosives, or anything like that. So there were no physical devices. It was basically a joke that went wrong. And I had never done something 'so stupid in my life as that moment right there. I was punished by the commanding officer and received you know a standard (inaudible) punishment. But I just think that that may have been part of my work environment getting to me. And I wasn't able to cope appropriately. Lastly, the Board highlights the Veteran's service personnel records. They illustrate the following timeline: July 1989 counseled for alcohol August 1989 counseled for a "lackadaisical" attitude August 1989 counseled for alcohol July 1990 August 1990 - deployed September 1990 Bomb threat; received an Article 15/nonjudicial punishment November 1990 December 1990 - deployed February 1991 deployed for two weeks April 1991 November 1991 deployed Reviewing these disparate records, the Board finds an etiology theory exists which merits remand. Specifically, the opinions above explain that the Veteran's depression is most likely caused by his inability to cope in response to whatever stressor(s) are currently at play in his life at that time. While the nature of the Veteran's stressor(s) appears to change over time, the Veteran's inability to cope with them remains a consistent theme. What is not clear to the Board is whether the Veteran's inability to cope began during, or was otherwise caused by, his military service, especially as evidenced by the in-service disciplinary issues he exhibited. Accordingly, the Board will remand for an addendum opinion. Secondary In May 2021, the Veteran submitted a statement in which he excerpted "The Relationship between Mental Health, Mental Illness and Chronic Physical Conditions," an article published by the Canadian Mental Health Association. The complete text of the article is available at: https://ontario.cmha.ca/documents/the-relationship-between-mental-health-mental-illness-and-chronic-physical-conditions/ The Board recognizes that, to date, the secondary theory of entitlement has focused upon whether the Veteran's acquired psychiatric disorder is secondary to his Crohn's disease. However, VA has also service connected the Veteran for a back disorder. Given the May 2021 statement, the Board finds an addendum opinion is warranted to expand the scope of the secondary inquiry to include the back disorder. The matters are REMANDED for the following action: 1. Obtain a VA addendum medical opinion on the nature and etiology of the Veteran's acquired psychiatric disorder from the medical professional who provided the March 2021 addendum opinion. If that medical professional is not available, obtain an addendum opinion from another qualified medical professional. A copy of this Remand, along with the claims file, should be reviewed by the medical professional. The, please ask the medical professional to opine as to the following: a) Is it at least as likely as not (50 percent probability) that the Veteran's inability to cope with the then-current stressors in his life began during, or was otherwise caused by, military service? Why or why not? b) To what extent, if any, do the Veteran's in-service behavioral problems (counseled twice for alcohol consumption, counseled once for lackadaisical attitude, and nonjudicially punished for a bomb threat) demonstrate or indicate his inability to cope with the then-current stressors in his life? Explain your reasoning. c) Is it at least as likely as not (50 percent probability) that the Veteran's acquired psychiatric disorder began during, or was otherwise caused by, military service? Why or why not? d) Is it at least as likely as not (50 percent probability) that the Veteran's service-connected Crohn's Disease CAUSED his acquired psychiatric disorder? Why or why not? e) Is it at least as likely as not (50 percent probability) that the Veteran's service-connected Crohn's Disease AGGRAVATES his acquired psychiatric disorder? Why or why not? f) Is it at least as likely as not (50 percent probability) that the Veteran's service-connected back disorder CAUSED his acquired psychiatric disorder? Why or why not? g) Is it at least as likely as not (50 percent probability) that the Veteran's service-connected back disorder AGGRAVATES his acquired psychiatric disorder? Why or why not? h) Is it at least as likely as not (50 percent probability) that the combined effects of the Veteran's service-connected Crohn's Disease and back disorder CAUSED his acquired psychiatric disorder? Why or why not? i) Is it at least as likely as not (50 percent probability) that the combined effects of the Veteran's service-connected Crohn's Disease and back disorder AGGRAVATE his acquired psychiatric disorder? Why or why not? In answering the questions for secondary service connection, the examiner MUST address the relevance, if any, of "The Relationship between Mental Health, Mental Illness and Chronic Physical Conditions," an article published by the Canadian Mental Health Association that the Veteran excerpted in a May 2021statement. The full text of the article is available at https://ontario.cmha.ca/documents/the-relationship-between-mental-health-mental-illness-and-chronic-physical-conditions/. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.