Citation Nr: 21071785 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 15-06 375A DATE: December 1, 2021 REMANDED Entitlement to service connection for a psychiatric disorder to include anxiety disorder and depressive disorder is remanded. Entitlement to service connection for alcohol and substance dependence is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1997 to November 1997. The Veteran is unrepresented in this appeal. The Board acknowledges its obligation to read the filings of this pro se claimant liberally. See Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (each emphasizing that pro se filings must be read liberally). In July 2019, the Board remanded these matters for a VA examination as the Veteran had shown good cause for not attending his previously scheduled VA examination. The Veteran was afforded the requested VA examination in November 2020. Upon review of the requested medical opinion, the RO requested a clarifying addendum opinion; opinions were received in May 2021, and the RO issued a Supplemental Statement of the Case (SSOC) in September 2021, addressing both issues. Unfortunately, as will be addressed below, the Board finds that the VA opinions are inadequate for purposes of deciding the Veteran's claims on appeal, and another remand is necessary in order to ensure compliance with the Board's July 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a psychiatric disorder and alcohol and substance dependence is remanded. In remanding the Veteran's claims in July 2019, the Board requested the VA examiner provide an opinion addressing whether the Veteran's psychiatric disorder arose in or was otherwise etiologically related to active service. Additionally, the examiner was asked to address whether the Veteran's psychiatric disorder pre-existed active service, and if so, whether the psychiatric disorder increased in severity during active service beyond the natural progression of the disease. In rendering these opinions, the examiner was specifically asked to consider certain noted military personnel records and medical records, including 1997 military personnel records showing that the was arrested for battery in April 1991, assault with intention to cause physical injury in July 1993, and assault-domestic violence in June 1996, all of which resulted in referral for processing for fraudulent enlistment for not disclosing the arrests in January 1997; and 2007 and 2008 medical treatment records noting a reported 15 year history of substance abuse. In November 2020, the VA examiner provided both a positive direct service connection opinion and a positive aggravation opinion. Specifically, the examiner opined that it was at least as likely as not that the Veteran's Unspecified Depressive Disorder, Alcohol Use Disorder recurrent mild, Cocaine Use Disorder was incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran's in-service stressors, which include being ridiculed and bullied led to depressive symptoms and increased substance use after service; there was no record of pre-military substance use or depression, and the Veteran's 1997 record indicates that he tried marijuana once. The examiner then also opined that the claimed condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service injury, event, or illness, reasoning that there are no pre-military psychiatric treatment records or diagnosis; however, it is possible that the Veteran's report of his erratic childhood contributed to his interpersonal difficulties and resultant depression and substance use post-service. His military interpersonal struggles were a trigger and aggravated possible depressive symptoms which led to chronic substance use. In a November 2020 deferred rating, the RO noted that a disorder cannot be both due to service and also due to a pre-existing issue aggravated by service. Additionally, the RO indicated that, with regard to the aggravation opinion, the examiner had already stated there is no pre-military diagnosis or treatment. Nevertheless, there was no treatment in service or any other evidence in the records to show aggravation; aggravation has to happen in service and/or clearly be shown to have worsened the actual underlying condition. As far as the direct service connection opinion, the RO noted that there was no treatment or complaint in service and nothing to show traumatic experiences in service, and there is probative evidence from a treating examiner that the Veteran had abuse issues prior to service. Finally, the RO indicated that it was unclear if the depressive disorder is due to or secondary to the substance abuse or if they are both standalone diagnoses. The records show a long history, starting well before service, of abuse issues. They do not, however, show a mental health diagnosis prior to service or in service. Therefore, the RO ordered a clarification opinion on these points. In May 2021, the same examiner indicated that the diagnoses provided were based upon the history of psychiatric treatment and rehabilitations subsequent to service. Further, the clinician arrived at the medical opinion based on the Veteran's reported history alone and his current symptoms, since there were no treatment records or history of complaints about misconduct toward the Veteran; the Veteran reported that he was wrongfully discharged, and the attorney's notes refute his misconduct prior to service. Further, the examiner noted that the file does not indicate any psychiatric treatment or symptoms while in service, and the Veteran did not report or have history of any psychiatric diagnosis prior to service. However, because the examiner indicated that claims folder was not reviewed, new opinions were requested. In August 2021, the same examiner provided two negative opinions regarding direct service connection and aggravation. Regarding direct service connection, the examiner indicated that there is no evidence of the Veteran's pre-existing psychiatric diagnosis on record and the clinician could not state without mere speculation that his current diagnoses were aggravated due to service. The examiner noted that the Veteran had an erratic childhood which likely led to his current diagnosis and Veteran's report alone indicates that his bullying during service led to his consequent unemployment, homelessness and worsening psychiatric symptoms. The examiner provided the same rationale for the negative aggravation opinion. A medical opinion will be considered adequate when it is based upon consideration of the Veteran's prior medical history and examinations and provides a sufficiently detailed description of the disability so that the Board's evaluation will be a fully informed one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).; Green v. Derwinski, 1 Vet. App. 121, 124 (1991). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, aggravation of a condition by a service-connected disability must be considered independently of direct causation, and medical examinations must provide adequate reasoning and conclusions on both points. Atencio v. O'Rourke, 30 Vet. App. 74, 91 (2018). After a review of the VA medical opinions, the Board finds that the opinions are inadequate for purposes of deciding the Veteran's claim. In this regard, the Board notes that the examiner's rational for direct service connection addresses aggravation, suggesting that the Veteran's psychiatric disorder existed prior to service. However, then in addressing aggravation, the examiner indicated that there was no evidence of the Veteran's pre-existing psychiatric diagnosis on record. Thus, the opinions are unclear and appear to contradict one another. Further, it is unclear whether the examiner considered the identified evidence regarding the onset of the Veteran's symptoms noted in the Board's prior remand, as no discussion of this evidence was provided. In light of the deficiencies in the requested medical opinions, the Board finds that a remand for a new VA examination with a new examiner is necessary to ensure compliance with the July 2019 remand directives. The matters are REMANDED for the following action: Schedule the Veteran for a new VA examination regarding the nature and etiology of his psychiatric disorder. A different examiner from the one involved in the previous examinations and opinions should conduct the new VA examination. The electronic claims file must be made accessible to the examiner for review in conjunction with the examination. (a.) The examiner should indicate whether it is clear and unmistakable (obvious and manifest) that a psychiatric disorder existed prior to service. (b.) If the examiner finds that the Veteran clearly and unmistakably had a psychiatric disorder prior to service, then the examiner should opine as to whether it is also clear and unmistakable that any such disability was NOT aggravated during service beyond its natural progression. (c.) If the examiner finds that the Veteran did not clearly and unmistakably have a psychiatric disorder prior to service, the examiner should indicate whether it is at least as likely as not (50 percent or greater probability) that the psychiatric disorder had its onset in service or is otherwise etiologically related to service. In rendering the requested opinions, the examiner is asked to consider the following: i. A November 1997 service memo that indicates the Veteran was arrested for battery in April 1991, assault with intention to cause physical injury in July 1993, and assault-domestic violence in June 1996. The Veteran was referred for processing for fraudulent enlistment for not disclosing the arrests in January 1997. The Veteran's attorney in June 2019 stated that the Veteran was never arrested or convicted for charges of battery or assaults both charges were dismissed and expunged from his record at enlistment. She pointed out that the Veteran was given an administrative counseling/warning in June 1997 for failure to report these charges, not arrests. She cited to the following: "(y)ou are being retained in the naval service, however, the following deficiencies in your performance and/or conduct are identified: Failure to disclose battery, 4/91; and assault with intent to cause physical injury, 7/93; New, York, NY. Dismissed. No further legal action pending." ii. There is conflicting evidence as to the onset of the Veteran's substance abuse. A January 2008 mental health treatment record indicates that the Veteran reported having a 15 year history of substance abuse. In June 2019 the Veteran's attorney clarified that a 15 year history of substance abused noted in a June 2008 treatment record is merely an approximation and the Veteran reiterates that his substance abuse began in service in order to cope with being ridiculed, bullied, and humiliated during service which resulted in him becoming disillusioned, depressed, and anxious. Treatment records in December 2007 show both that the Veteran had a 15 year substance abuse history and that the Veteran reported that he started inhaling cocaine at age 27, which is approximately when the Veteran was in service as his DD 214 shows that he was born in November 1969. A January 1997 Record of Military Processing shows that the Veteran tired marijuana one time, in January 1997, due to peer pressure. The examiner must provide reasons for each opinion expressed with consideration given to all evidence of record. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.