Citation Nr: 25008733 Decision Date: 07/02/25 Archive Date: 07/02/25 DOCKET NO. 19-12 150 DATE: July 2, 2025 REMANDED Entitlement to service connection for substance use disorders as secondary to service-connected posttraumatic stress disorder, diagnosed as alcohol use disorder in remission and cocaine use disorder in remission, is remanded. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) before October 6, 2021, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2007 to January 2008, and from January 2010 to January 2011. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision. The Veteran testified before the undersigned Veterans Law Judge at an August 2022 virtual hearing and a transcript of the hearing has been associated with the claims file. In October 2022, the Board issued a decision that denied entitlement to a rating in excess of 70 percent for the Veteran's posttraumatic stress disorder (PTSD) and remanded claims for service connection for a back disability, a right knee disability, and entitlement to a TDIU. The Board also noted that the issue of entitlement to service connection for alcohol and drug dependence secondary to PTSD had been raised by the Veteran and his representative during the August 2022 Board hearing, but declined to adjudicate the claim as the issue had not previously been adjudicated by the Agency of Original Jurisdiction (AOJ). Following the October 2022 remand, the AOJ issued a rating decision in December 2022 that granted entitlement to a TDIU effective October 6, 2022. This was not a full grant of the benefit sought regarding entitlement to a TDIU, and the issue remained in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). The AOJ issued a Supplemental Statement of the Case in December 2022, and the claim for a TDIU before October 6, 2022 was recertified to the Board. The December 2022 rating decision also granted service connection a lower back disability and a right knee disability. Those claims were fully granted, and are no longer before the Board. In March 2023, the Board issued another decision that denied entitlement to a TDIU before October 6, 2021. The Veteran appealed the Board's October 2022 and March 2023 decisions to the Court of Appeals for Veterans Claims (Court), and in November 2024, the Court issued a Memorandum Decision partially vacating the October 2022 decision and vacating the March 2023 decision. Regarding the October 2022 decision, the Court affirmed the Board's decision denying a rating in excess of 70 percent for PTSD. However, the Court found the Board had erred by failing to consider whether service connection was warranted for alcohol and substance abuse secondary to the Veteran's PTSD. Regarding the March 2023 decision, the Court found the Board had failed to consider how the Veteran's combined disabilities impacted his occupational functioning, including the Veteran's now service-connected lumbar spine strain, right knee, and tinnitus. As such, the Court set aside the part of the October 2022 decision that failed to adjudicate a claim for alcohol and substance abuse disorders secondary to the Veteran's PTSD, set aside the March 2023 decision that denied a TDIU before October 6, 2021, and remanded the matters to the Board for action consistent with the Memorandum Decision. In February 2025, the Veteran and his representative were sent letters providing 90 days to submit additional evidence and arguments in support of the claims. That 90-day period expired on May 26, 2025, and no additional argument or evidence was submitted by the Veteran and his representative. 1. Entitlement to service connection for substance use disorders as secondary to service-connected posttraumatic stress disorder, diagnosed as alcohol use disorder in remission and cocaine use disorder in remission, is remanded. The Court partially vacated the Board's October 2022 decision that denied a rating in excess of 70 percent for the Veteran's PTSD. The Court affirmed that denial, and the issue of a rating in excess of 70 percent for PTSD is not currently before the Board. Instead, the Court vacated the portion of the portion of the October 2022 decision that declined to adjudicate the claim as the issue had not previously been adjudicated by the Agency of Original Jurisdiction. On remand, the Court concluded the Board must assert jurisdiction over the Veteran's claim for substance abuse disorders secondary to his PTSD The Board notes that once VA receives a complete claim, it will also consider all lay and medical evidence of record in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition. 38 C.F.R. § 3.155 (d)(2). The Court has also held that VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability. Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021). Here, service connection for the Veteran's substance use disorders was explicitly raised by the Veteran and his representative during the appeal for a higher rating of his PTSD. Here, the Veteran was diagnosed with alcohol use disorder in early remission and cocaine use disorder in early remission during an April 2017 VA PTSD examination, during which he reported that he had been sober from alcohol for the past two months and that he had been using cocaine approximately three times per month during the past year. A later VA PTSD examination provided in June 2020 shows a diagnosis for alcohol use disorder, severe, in sustained remission. VA treatment records dated April 2027 indicate the Veteran was then recently sober from both alcohol and cocaine, and more recent VA treatment records indicate the Veteran has remained sober since. While the Veteran's substance abuse disorders have been in remission for several years, he did have alcohol use and cocaine use disorders during the early portions of the appeals period, which begins in September 2016. VA's duty to assist includes providing a medical examination or opinion when one is necessary to decide a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). In in determining whether an examination or opinion must be obtained, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. Id.; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service connection for PTSD has been granted, and the Veteran was diagnosed with substance use disorders during the period on appeal. During the August 2022 Board hearing, the Veteran and his representative have argued his substance use disorders, specifically his alcohol use and cocaine use, were secondary to his PTSD. However, there is no competent medical evidence addressing whether his diagnosed alcohol use and cocaine use disorders were proximately due to, the result of, or aggravated by his PTSD. The Veteran established VA mental health care in April 2017, and at that time reported that he had begun drinking to pass time and have fun with friends after returning from deployment in 2011. A June 2019 VA mental health note shows the Veteran reported his cocaine use occurred only when drinking, which had led to his decision to stop drinking. The VA treatment records and the Veteran's mental health providers have not specifically attributed alcohol or cocaine use disorders to the Veteran's PTSD. The April 2017 and June 2020 VA examiners did not provide any medical opinions relating to the Veteran's substance use disorders, which were in remission at the time. The most recent VA PTSD examination was provided in January 2025, and is negative for any substance use disorders. No competent medical evidence attributes the Veteran's substance use disorders to PTSD. Considering the foregoing, the Board finds a new VA examination and medical opinion are necessary to determine whether substance use disorders are proximately due to, the result of, or aggravated by the Veteran's service-connected PTSD. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) before October 6, 2021, is remanded. The Court's November 2024 Memorandum Decision also vacated the Board's prior March 2023 decision that denied entitlement to a TDIU before October 6, 2021, because the Board had not considered the combined impacts of the Veteran's PTSD, lumbar spine strain, right knee strain, and tinnitus on his ability to secure and follow substantially gainful employment before October 6, 2021. The Veteran's claim for a TDIU before October 6, 2021 is partially intertwined with the claim for service connection for substance use disorders, and should be remanded as well. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In addition, significant evidence relating to the severity of the Veteran's service-connected disabilities and his ability to work has been associated with the file since the most recent Supplemental Statement of the Case was issued. Evidence received by the AOJ after the record was transferred to the Board for appellate consideration will be forwarded to the Board if it has a bearing on the appellate issue or issues. The Board will then determine what action is required with respect to the additional evidence. 38 C.F.R. § 19.37 (b). Here, additional VA treatment records and examinations were received after the Veteran's appeals were transferred to the Board. Any pertinent evidence referred to the Board under section 19.37 (b) must be referred to the AOJ for review, unless this procedural right is waived by the appellant, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral. 38 C.F.R. § 20.1305 (c). The Veteran has not waived AOJ consideration of the new evidence obtained since the December 2021 Supplemental Statement of the Case was issued. In addition, not all benefits to which the evidence relates can currently be fully allowed without referral. Accordingly, the claim for a TDIU before October 6, 2021 must also be remanded for a Supplemental Statement of the Case that considers all of the pertinent evidence associated with the file since the December 2021 Supplemental Statement of the Case was issued. The matters are REMANDED for the following action: 1. Provide the Veteran for a VA examination to determine the nature and etiology of his current substance use disorders, which were diagnosed during the appeals period as alcohol use disorder, severe in sustained remission, and cocaine use disorder in remission. After examining the Veteran and reviewing the claims file, the examiner must determine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's substance use disorders are proximately due to, the result of, or aggravated by his service-connected PTSD. Separate opinions addressing causation and aggravation are required. A full rationale must accompany any opinion rendered. 2. After the above development has been completed, readjudicate the Veteran's claim for service connection for substance use disorders and his claim for entitlement to a TDIU before October 6, 2021. If the benefits sought are not granted to the Veteran's satisfaction, provide the Veteran and his representative a Supplemental Statement of the Case with an opportunity to respond. SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Morse, Stenson 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.