Citation Nr: 21068757 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-51 566 DATE: November 12, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for skin rash is remanded. Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in July 2021. A transcript of the hearing has been associated with the claims file. 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD The Veteran underwent a VA examination in November 2013. The examiner found the Veteran did not have a diagnosis of PTSD but diagnosed the Veteran with depressive disorder not otherwise specified. However, the examiner did not provide an opinion as to whether the Veteran's depression was caused by or onset in service. Subsequent treatment notes include a diagnosis of PTSD. Clarification on the Veteran's diagnosis and a nexus opinion are needed. Additionally, clarification is needed regarding whether the Veteran has a diagnosis of a substance use disorder and whether it may be secondarily related to a service-connected disability. The November 2013 VA examiner indicated the Veteran reported demotion while he was in the military. The Veteran could not articulate why he was demoted, but suspected it was for fighting and drug use. The examiner noted the Veteran used drugs in service. The Veteran denied current abuse of illicit drugs, but indicated his past was significant for alcohol abuse/binge drinking and drug abuse. 25 years of drug abuse, including heroin, cocaine, cannabis, and hallucinogens were noted. The Veteran never participated in a substance abuse treatment program. The examiner did not address whether the Veteran has a substance use disorder. At the time of the July 2021 Board hearing, the Veteran explained he could not really deal with what was going on while he was in Vietnam. He had a nervous breakdown and got into fights. He started using drugs to try to deal with it. The Veteran's representative indicated at the time of the hearing that she was not sure if the VA examiner addressed the Veteran's drug use and what started the drug use; she contended this assessment would be needed to give a full picture as to his psychiatric condition. The Board notes that generally, service connection may not be awarded for alcohol or drug abuse. See 38 U.S.C. § 1110 ("no [VA] compensation shall be paid if the disability is the result of the veteran's own willful misconduct or abuse of alcohol or drugs"); see also 38 U.S.C. § 105(a). However, service connection for alcohol and drug abuse may be established on a secondary basis where it is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (a). In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the Federal Circuit held that a veteran could receive compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a veteran's service- connected disability. Specifically, "where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." See Allen, 237 F. 3d at 1381. As noted by the Veteran's representative, the examiner did not address whether the Veteran has a diagnosis of a drug and/or alcohol condition. Remand is warranted to clarify the Veteran's diagnosis(es), and obtain nexus opinions, including whether the Veteran has a diagnosis of a substance use disorder, and if it is secondary to any acquired psychiatric disability. 2. Entitlement to service connection for obstructive sleep apnea The Board cannot make a fully-informed decision on the issue of service connection for obstructive sleep apnea because no VA examiner has opined whether it was caused by his service. The record reflects the Veteran was diagnosed with obstructive sleep apnea in November 2015 after undergoing a neurology sleep study. At the time of the July 2021 Board hearing, the Veteran's representative contended the Veteran's sleep apnea is secondary to his psychiatric disability and/or his skin condition. Remand is warrented to obtain an opinion. 3. Entitlement to service connection for skin rash The Board cannot make a fully informed decision on the issue of service connection for skin rash because no VA examiner has opined whether it was caused by his service. The record reflects the Veteran sought treatment for a rash in September 2015. At the time of the July 2021 Board hearing, the Veteran's representative contended the Veteran's rash was related to his heroin use, which began while he was serving in Vietnam to cope with his psychiatric condition. The Board notes that depending on whether the Veteran's drug use is secondarily service connected to a service connected acquired psychiatric condition, the Veteran's skin rash may be secondarily service connected to his drug use. Remand is necessary to obtain an opinion. 4. Entitlement to service connection for hearing loss The Veteran underwent a VA examination in November 2013. At that time, the examiner indicated the Veteran's hearing was within normal limits bilaterally. At the time of the July 2021 Board hearing, the Veteran stated his hearing had gotten worse since the prior examination. Considering the prior examination was eight years ago, the Board finds that remand is warranted to obtain a new examination to determine whether the Veteran has a current disability. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from August 2017 to the present. 2. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD and/or other acquired psychiatric disability. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not (50 percent probability or greater) related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not (50 percent probability or greater) caused by or onset in service. The examiner must address whether the Veteran has had a diagnosis of a substance abuse disorder at any time during the period on appeal, to include a disorder in remission. If so, is it at least as likely as not (50 percent probability or greater) that it was caused by an acquired psychiatric disorder that was caused by or onset in service (i.e., secondary to it as a coping mechanism)? A complete rationale must be provided for all opinions rendered. 3. Schedule the Veteran for VA examinations for his obstructive sleep apnea, bilateral hearing loss, and rash. The examiner(s) is asked to provide a response to the following: a. Is the Veteran's obstructive sleep apnea at least as likely as not (50 percent or greater probability) caused by or onset in service? b. Is the Veteran's obstructive sleep apnea at least as likely as not (50 percent or greater probability) proximately due to his rash or psychiatric disability? c. Is the Veteran's obstructive sleep apnea at least as likely as not (50 percent or greater probability) aggravated, i.e., worsened, by his rash or psychiatric disability? d. Is the Veteran's skin rash at least as likely as not (50 percent or greater probability) caused by or onset in service? To the extent that the Veteran's current skin rash was caused by the Veteran's in-service heroin use, is it as likely as not that the Veteran's in-service drug use was caused or aggravated by his acquired psychiatric disability. e. Has the Veteran had a hearing disability at any time during the period on appeal? If so, is it at least as likely as not (50 percent or greater probability) caused by or onset in service? A complete rationale must be provided for all opinions rendered. 4. Readjudicate the claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.