Citation Nr: 21013961 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-14 775 DATE: March 11, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran had active duty in the U.S. Marine Corps from August 2004 to May 2005. In November 2020, the Veteran and his father testified before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the Veteran’s claims file. As reflected above, the Board has recharacterized the issue of posttraumatic stress disorder (PTSD) as acquired psychiatric disorder in consideration of the benefit sought by the Veteran and raised by the evidence of record. When a claimant makes a claim, he is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Threshold Issue At the November 2020 Board hearing, the Veteran’s representative raised issues concerning the disability rating assigned to the Veteran’s knee disability as well as service connection for traumatic brain injury (TBI). Upon review of the record, the Board has current jurisdiction limited only to the claim captioned above. See, e.g., March 22, 2015 NOD; February 8, 2017 SOC; July 25, 2017 SSOC. While the Board recognizes that the Veteran’s representative addressed the “knee problems as well as a secondary claim of TBI” in the March 17, 2017 substantive appeal (VA FORM 9), these issues were not mentioned in the notice of disagreement (NOD), statement of the case (SOC), or supplemental statement of the case (SSOC). As such, these issues were not certified for Board jurisdiction. See September 29, 2017 Form 8. Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. Here, the Board observes that the basis for remand concerns a pre-decisional error in VA’s duty to assist. 38 C.F.R. § 20.802. Discussion The Veteran contends that an acquired psychiatric disorder was incurred in, aggravated by, or otherwise attributable to, service. The Veteran contends that he was involved in a gang shoot-out at a Camp Pendleton armory during his time as in advanced infantry training and that he killed two gang members, which caused debilitating psychological symptomatology, indicative of an acquired psychiatric disorder. Additionally, the Veteran contends that military clinicians treated a knee injury excessively with opioids, which led to dependency, and, in turn, caused or aggravated his psychological status. A review of the Veteran’s service treatment records (STRs) shows that underwent arthroscopic left knee surgery in 2000, prior to active duty. A private clinician indicated at this time the Veteran was found to have chondromalacia of the left knee. Moreover, the Veteran sustained a second left knee injury in May 2003 during a motor vehicle accident. Upon his January 2004 induction examination, the Veteran waived a left knee injury noting that his left knee was stable. On December 20, 2004, the Veteran sought treatment for a left leg injury that he reported sustaining while hiking 10 days earlier. The clinician noted a history of a meniscal injury playing sports in high school and underwent arthroscopy and debridement but after therapy was cleared for enlistment. Pain had increased while in recruit training and an examination showed effusion, patellar tenderness, and meniscal stress. He was currently on temporary recruiting duty and was authorized limited duty until he reported to his new duty station in January. No prescription medication was noted. In January 2005, the Veteran sought treatment at his new duty station for left knee pain and laxity. A clinician diagnosed a torn meniscus, ordered X-rays, and prescribed motrin, Vicodin, use of a crutch, and placed on restricted duty. An X-ray obtained on January 10 was normal but a magnetic resonance image obtained on January 13 showed no meniscal tear or loose bodies but some edema and degenerative signals and thinning of the cartilage over the patella. Prescriptions for Vicodin and ibuprofen were continued. On January 28, a clinician noted the Veteran had refused treatment or been non-compliant with treatment and therapy and recommended that the Veteran’s case be reviewed by a medical evaluation board. In a February 2005 Medical Evaluation Board (MEB), the Veteran was referred to a Physical Evaluation Board for probable separation from the military. In the MEB narrative summary, a military physician noted that the Veteran was diagnosed with a possible left meniscal tear and was afforded magnetic resonance imaging (MRI) of the left knee in January 2005. The MRI disclosed left patellar chondromalacia. The Veteran was referred to an orthopedic surgeon who recommended surgery; however, the Veteran indicated that he did not want to undergo surgery. The narrative also reflects that the Veteran was unwilling to cooperate in therapy. So, from January 2005 through at least the date of the MEB, the Veteran suffered through knee pain of 9-to-10 and took the narcotic Vicodin. The MEB indicates that the Veteran requested a refill of this narcotic, and the last record of a refill was on February 17. In the functional status and prognosis section of the MEB narrative, the physician stated that the Veteran did not want to continue on active duty. There is no further record of medical care by military clinics from that time to the date of discharge on May 31, 2005. On March 5, 2005, the Veteran signed an acknowledgement of options following the physical evaluation board recommendation that he was unfit for further service. He indicated that his address was in Orangevale, California. Upon a general VA examination in August 2005, a clinician noted that the Veteran did not endorse anxiety, depression, PTSD, or insomnia. However, the Veteran did endorse that he experienced intermittent insomnia due to left knee pain. This clinician did not convey that the Veteran used an opioid or narcotic to control his left knee pain. in January 2015, a VA clinician reported that the Veteran had displayed suicidal behavior; had PTSD; had a depressive disorder; and was opioid dependent. The Veteran was also prescribed multiple anxiolytic, selective serotonin reuptake inhibitor (SSRI) and atypical psychoactive medications to control his psychiatric symptomatology. In a July 2015 letter, Dr. L., an attending physician at a VA facility, wrote that the Veteran had been under his care since 2012. Dr. L. added that the Veteran cannot engage in any substantial gainful employment because of his “medical condition,” which has been continuously present since 2014. Dr. L. did not explain what diagnosis or diagnoses constituted the Veteran’s “medical condition.” Moreover, Dr. L. neither provided nor referred to any clinical treatment records. As such, the Board assigns minimal weight to Dr. L.’s letter as it provides very little in the way of specific medical findings or even a semblance of a rationale to support the contention that the Veteran cannot engage in any substantial gainful employment. In an August 2015 letter, Dr. S., a VA clinical psychologist, submitted a letter. Dr. S. reported that the Veteran has severe posttraumatic stress disorder (PTSD) arising from combat-like trauma that occurred at Camp Pendleton during active duty. Moreover, subsequent chronic PTSD symptoms contributed to a later self-inflicted gunshot wound to the head which resulted in severe and chronic traumatic brain injury (TBI) symptoms. In his clinical opinion, Dr. S. opined that the Veteran is permanently and totally disabled as a result of the combined impairment of PTSD and TBI. Even though Dr. S. indicated that he had been working individually with the Veteran, this one-page letter is not accompanied by clinical treatment records, psychometric testing results or brain acuity testing results, or reference to the sources from whence Dr. S. derived information about the “combat-like trauma” at Camp Pendleton. The Board finds that these deficiencies minimize the probative weight of this letter. In a November 2015 VA Form 21-2680 (“Housebound Status of Permanent Need for Aid and Attendance”), a physician reported that the Veteran was not bed-confined. Also, the Veteran did not require medication management and was capable of handling his own financial affairs. Even though the physician reported that the Veteran went to college regularly, the physician noted that the Veteran experienced problems with “word finding.” This physician did not provide guidance as to either narcotic use, opioid use, or any current debilitating psychiatric disability. A review of VA treatment records shows that the Veteran has been reticent to discuss the event or “stressor” that caused or aggravated his psychiatric disorder. In a December 2019 letter, Dr. T., a private physician, submitted a letter. This physician wrote that the Veteran suffers from chronic knee pain due to degenerative changes/osteoarthritis, PTSD (sic). Further, the doctor wrote that it is at least as not (sic) that the above health issues are related to service. Initially, the Board is unclear whether this physician means degenerative changes and PTSD. Dr. T. has included no clinical records concerning the Veteran’s knee, osteoarthritis, or PTSD. And, Dr. T. has not provided the sources for his opinion. At the November 2020 Board hearing, the Veteran offered little direct testimony. The Veteran’s representative explained this by stating that the Veteran suffered from severe psychological problems which prevented him from participating in any meaningful way. However, the Veteran’s father offered extensive testimony, to include: [The Veteran] told [him] [what] had happened when two MS-13 gang members got into the Armory during [the Veteran’s] watch. [The M-13 members] challenged [the Veteran] because they were going to […] weapons and [the Veteran] engaged in a firefight […] killing two of [the gang members]. […] The response from command was basically forget about this [;] if you do [not], you’re going to be locked up and go to jail so fast you won’t even know what happened. See November 17, 2020 Hearing Transcript, pp. 13-14. The father also indicated that he was trained in investigations and served on a police force and had contacted the investigative service of NCIS and received no reply under the Freedom of Information Act (FOIA). Nevertheless, at the hearing, the Veteran’s representative conveyed that he did not believe that the Veteran’s Armory shoot-out account was true. Rather, this representative, who also identified himself as a psychologist, indicated that the elaborate shoot-out scenario is a delusion that has formed as a result of the Veteran’s chronic pain and narcotic/opioid use/dependence. See id. at p. 37. The representative submitted a binder of materials that included a chronology and a consultant-psychologist’s report. As to the representative’s chronology, the Board observes that the Veteran’s abuse of oxycodone began in 2007-2008, that is well after the Veteran’s service. Dr. W., the consultant who produced an October 2020 report, performed psychometric testing and an interview. The consultant diagnosed major depressive disorder recurrent severe with psychotic features; PTSD; traumatic brain injury; alcohol use disorder in sustained remission; and opioid use disorder in sustained remission. Further, the consultant stated that Veteran became “clearly addicted while in service” and continued to be treated with narcotics by VA. Upon review of the Veteran’s voluminous VA treatment records and progress notes, the Board does not find evidence of this purported narcotic treatment. In fact, VA treatment records disclose that the Veteran was treated for narcotic and opioid cessation. Moreover, as noted above, the consultant’s note about addiction beginning in service clearly conflicts with the representative’s chronology. The Board finds that some additional development is necessary to address the two causes of the current mental health disabilities. Even though there was some acknowledgement by the representative that the intrusion and killing of civilian gang members at an armory at Camp Pendleton may not be factual, the RO requested verification only from the U.S Marine Corps archives. As this was a criminal matter, any records of the event and investigation would have been generated and maintained by law enforcement agencies. Therefore, a request to appropriate federal law enforcement agencies is necessary to best seek verification of the occurrence of that event and the Veteran’s presence and participation between November 12 and December 14, 2004. Regarding the causation of opioid addition because of extended military prescribed medication, it is necessary for a medical opinion to address whether addiction was caused by military medical care. The last prescription of record was February 17, 2005 and the Veteran was released to travel from the military station on March 5, 2005. Therefore, the period of time for the military prescription was about two months. The matters are REMANDED for the following actions: 1. Obtain and associate any updated VA treatment records with the claims file. All records/responses received must be associated with the claims file. 2. Contact the Naval Criminal Investigative Service (NCIS) and the Federal Bureau of Investigation (FBI) and request that these agencies produce all records of armed intrusions and killings (if any) that occurred at the Camp Pendleton armory between November 12, 2004 to December 14, 2004. All communications with these agencies must be associated with the claims file. 3. Arrange for a VA mental health examination with an appropriate physician and a psychologist, or psychiatrist (preferably with expertise in polysubstance abuse disorders). This provider must review the entirety of the claims file and indicate that such review has taken place in the examination report. The provider(s) should perform all necessary psychometric testing and examination determine the diagnosis or diagnoses that are clinically apposite to the Veteran. Upon completion of the above tasks, the provider is asked to render opinions as to the following inquiries: a. Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s current psychiatric disability, if any, was incurred in, aggravated by, or otherwise attributable to, service to include any verified presence and during an armed intrusion into a Camp Pendleton Armory while the Veteran was a student in training from November 12 to December 14, 2004? AND b. Whether it is at least as likely as not that the Veteran’s military prescribed Vicodin in January and February 2005, as noted above, caused or aggravated addiction, polysubstance-use disorder, or any other psychiatric disability? For all opinions expressed, complete rationales must be provided. The provider must reconcile any opinion with all other clinical evidence of record and the Veteran’s and other lay evidence. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the provider rejects the Veteran’s reports, she/he must provide an explanation for such rejection. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.