Citation Nr: 21039959 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 10-44 572 DATE: July 1, 2021 REMANDED Entitlement to service connection for a psychiatric disorder with alcohol dependence and a personality disorder not otherwise specified with antisocial traits as secondary to his now service-connected posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served in the United States Army from June 1988 to June 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge at an April 2013 travel board hearing in St. Petersburg, Florida, and a transcript of this hearing is associated with the claims file. However, the Veterans Law Judge who presided over that hearing is no longer with the Board. In a June 2016 letter, the Veteran was notified of that fact and offered the opportunity to have a hearing before a current member of the Board. To date, the Veteran has not requested a new hearing. This matter was previously before the Board in March 2017, at which time the Board remanded the issue and ordered the Agency of Original Jurisdiction (AOJ) find missing jurisdictional documents including the Notice of Disagreement, Statement of the Case, and VA Form 9. It has since returned to the Board for further appellate review. The Board notes that while the claim was on Remand, an April 2020 rating decision granted service connection for posttraumatic stress disorder (PTSD), claimed as depression, anxiety, nightmares. The claim remaining on appeal pertains to an acquired psychiatric disability, other than PTSD. 1. Entitlement to service connection for a psychiatric disorder with alcohol dependence and a personality disorder not otherwise specified with antisocial traits as secondary to his now service-connected PTSD is remanded. The claims file shows emails in which the AOJ attempted to locate the missing documents the February 2010 Notice of Disagreement, October 2010 Statement of the Case, and November 2010 VA Form 9 - per the Board's March 2017 remand directions. Additionally, in February 2020, August 2020, and December 2020 letters, the AOJ asked the Veteran to provide copies of these documents if he had copies in his possession. In the January 2021 Supplemental Statement of the Case, the AOJ informed the Veteran these missing records could not be located. Seeing as the evidence of record shows multiple attempts by the AOJ to acquire the missing documents, the Board finds the AOJ substantially complied with its March 2017 remand, even though the missing files were unable to be located. In the May 2021 Appellant's Post-Remand Brief, the Veteran's representative argues that the Veteran's alcohol dependence and personality disorder is proximately due to or a result of his now service-connected PTSD. The representative also requests that the Veteran's claim for alcohol use be broadened to include his polysubstance dependence as reflected in his VA treatment records. The representative also notes that the January 5, 2021 treatment note refers to a search of the Florida prescription drug monitoring program for any additional controlled substances that may have been prescribed by a non-VA physician, suggesting this is due to the Veteran's substance abuse history. VA law and regulations generally preclude a grant of service connection for a disability that originated due to substance abuse, as that is deemed to constitute willful misconduct on the part of the Veteran. See 38 U.S.C. § 105; 38 C.F.R. § 3.301 (d); see also, VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999). There is a limited exception, however, when there is clear medical evidence that the alcohol or drug abuse is secondary to a primary service-connected disability. See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence that the service-connected disability caused or aggravated the nonservice-connected disability. Wallin v. West, 11 Vet. App. 509 (1990). Service connection is not available for personality disorders because personality disorders, in and of themselves, are not compensable disabilities. See 38 C.F.R. §§ 3.303(c), 4.9. However, disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected. Id: see also VAOPGCREC 82-90 (noting that congenital and developmental defects can be subject to superimposed disease or injury such that service connection may be granted where the superimposed disease or injury occurs during service). The Veteran was afforded VA examinations in September 2013, April 2015, and April 2020. In the September 2013 examination, the examiner opined the Veteran's symptoms did not satisfy the DSM-IV criteria for PTSD. The examiner did diagnose the Veteran with "alcohol dependence, remission uncertain" and further noted the Veteran had previously been diagnosed with Borderline Personality Disorder, but the examiner did not provide any diagnosis of a personality disorder. In the April 2015 examination, the examiner stated the Veteran's symptoms did not meet the criteria for PTSD under the DSM-5. The examiner did diagnose the Veteran with unspecified bipolar disorder, and alcohol use disorder in early remission. The examiner did not diagnose any personality disorders, nor did the examiner comment on any such disorders being diagnosed previously. In the April 2020 examination, the examiner diagnosed the Veteran with PTSD. However, the examiner stated that while the Veteran has a history of using alcohol in the past to self-medicate, "this does not rise to a diagnosable condition at this time." The examiner did not diagnose the Veteran with any personality disorders, nor did the examiner discuss any previous diagnoses of a personality disorder in the Veteran's medical records. The Veteran's VA treatment records contain multiple notes where he is noted as having alcohol and substance dependence over the entirety of the appeal period, including mentions in November 12, 2008, December 5, 2011, August 19, 2014, and January 5, 2021. His records also note the Veteran was diagnosed with alcohol dependence in January 2013, as well as chronic alcoholism, in remission, in May 2020. As for a personality disorder, the Veteran's VA treatment records do not come to a consensus on whether or not he suffers from a personality disorder. An October 15, 2013 treatment note states the Veteran does not have a personality disorder, and an August 19, 2014 treatment note states that a personality disorder was ruled out. However, April 5, 2013 and September 30, 2013 notes mention the Veteran was diagnosed by a private physician with borderline personality disorder. A March 4, 2014 treatment notes the Veteran has cluster b traits noted under personality disorders. Additionally, an August 7, 2019 mental health note lists a diagnosis of an unspecified personality disorder, which that treating physician notes agreeing with. However, a June 11, 2019 notes a "rule out diagnosis of personality traits vs. disorder," indicating this treating physician disagreed with the diagnosis of a personality disorder. After reviewing the evidence of record, the Board finds the September 2013, April 2015, and April 2020 examinations to be inadequate because none of these examinations discuss whether the Veteran's alcohol dependence is proximately due to or otherwise caused by his now-service connected PTSD. Additionally, none of these examiners fully address the different diagnoses of personality disorders in the Veteran's VA treatment records. Further, while the April 2020 examiner noted the Veteran's history of alcohol abuse but did not have a diagnosis of alcohol dependence at this time, the examiner failed to address the previous diagnoses of alcohol dependence throughout the appeal period. An examiner must address all previous diagnoses during the appeal period and explain whether the diagnosis was in error or has resolved. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (because the Veteran had the diagnosis during the appeal period, the VA examiner needed to address that diagnosis and whether it was accurate or in error). Therefore, because these examinations are inadequate, the Board finds that an addendum opinion is necessary to address the Veteran's claim and thus a remand is warranted. Accordingly, this matter is REMANDED for the following action: Obtain an addendum opinion from the April 2020 examiner, or other qualified examiner if the April 2020 examiner is unavailable, regarding the Veteran's psychiatric disorder with alcohol dependence and a personality disorder not otherwise specified with antisocial traits as secondary to PTSD. If the examiner determines the Veteran should be given another examination (including via telehealth if an in-person examination is not possible) to answer the below questions, one should be scheduled. The examiner is requested to provide an opinion on the following: 1. Provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's diagnosis of alcohol dependence and polysubstance dependence are caused or aggravated by his now service-connected PTSD. 2. Provide an opinion as to whether the Veteran has a personality disorder. If so, is it at least as likely as not that any of the Veteran's diagnosed psychiatric disorders were superimposed on the underlying personality disorder as a result of service. 3. If it is determined that the Veteran does not have a personality disorder, then provide an opinion as to whether it is at least as likely as not that the Veteran's diagnosed psychiatric disorder(s) (other than his already service-connected PTSD) are related to his service, to include treatment received therein. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasoning why an opinion would require speculation. The examiner must indicate whether any opinion could not be given due to the limitation of knowledge in the medical community at large and not those of the particular examiner. A.M. CLARK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.