Citation Nr: 0305436 Decision Date: 03/24/03 Archive Date: 04/03/03 DOCKET NO. 97-04 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for drug and alcohol abuse as secondary to service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD Chris Moran, Counsel INTRODUCTION The veteran had active military service from August 1965 to April 1970. A historical review of the record shows that the veteran brought a timely appeal to the United States Court of Appeals for Veterans Claims (CAVC) from a November 21, 1997 decision of the Board of Veterans' Appeals (the Board). In the November 1997 decision the Board denied the claim of entitlement to service connection for drug and alcohol abuse as secondary to service-connected PTSD. The CAVC granted a joint motion of the parties thereby vacating that portion of November 1997 decision wherein the Board denied the claim of secondary service connection, and remanded the matter to the Board for further consideration. In a February 1999 decision the Board denied entitlement to service connection for drug and alcohol abuse as secondary to service-connected PTSD as not well-grounded. The veteran appealed to the CAVC. While this case was pending at the CAVC, the veteran's attorney and the VA Office of General Counsel filed a joint motion to vacate the Board's February 1999 decision due to the recent enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), and to remand the claim for readjudication. In a November 2000 Order, the CAVC vacated the Board's February 1999 decision pursuant to the VCAA, and remanded the veteran's claim to the Board for compliance with directives that were specified by the CAVC. The case has been returned to the Board for further appellate review consistent with the CAVC decision. In view of the favorable decision cited below the Board's consideration of VCAA in the first instance is not prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). FINDING OF FACT The probative and competent medical evidence provides an etiologic relationship between service-connected PTSD and the development of drug and alcohol abuse. CONCLUSION OF LAW Chronic drug and alcohol abuse is proximately due to or the result of service-connected PTSD. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §3.310(a) (2002). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The veteran's service medical records appear unremarkable for a reference to either a psychiatric disorder or drug or alcohol abuse. As unremarkable are his medical examination reports for National Guard service in 1977 and 1981. The veteran's initial contact with VA appears to have been in 1984 seeking service connection for shell fragment wound residuals to the face and left wrist claimed to have been sustained in Vietnam. At this time he also filed separately a claim for service connection for chronic pain, skin rash, chronic low back pain and dizziness as secondary to Agent Orange exposure. A contemporaneous VA examination reports shows there was a normal psychiatric status apparently. After the RO denied the appellant's initial claim in 1984, the next pertinent communication from the veteran was correspondence in 1989 seeking to reopen the previously denied claim of service connection for a back disorder and shell fragment wound residuals. The contemporaneous VA medical records are silent regarding PTSD or substance abuse. After the RO declined to reopen the veteran's claim in 1989, the next pertinent communication from the veteran was in mid 1994 seeking service connection for mental problems related to Vietnam that he identified as PTSD and in which he recalled events in service that he linked to his problem. He also mentioned that he was an alcoholic and substance abuser who needed help immediately. The medical records obtained by the RO in developing the claim consisted of VA medical records that dated from the late 1980's and a contemporaneous examination that reflected orthopedic complaints. On a VA psychiatric intake evaluation completed in early 1994 the veteran recalled that after service he "Drank my savings up for one month", went into the hospital for pneumonia and thereafter "went back to drinking" that reportedly " All started in Army - never drank -never smoked." The diagnostic impression included alcohol dependence and a provisional diagnosis of PTSD. On a 1994 VA psychiatric examination that provided a diagnosis PTSD, the veteran reportedly had been aggressive toward his spouse when he was drinking or using drugs and he denied any psychiatric hospitalizations. He recalled that after service he "drank too much and ended up in the hospital." He reportedly was married for 18 years and had an unstable marriage because of drinking and drugging. The multiaxial diagnostic assessment included PTSD but no substance abuse disorder was mentioned. After review of this record, the RO in May 1995 granted service connection for PTSD and assigned a 50 percent rating from July 1994. There was no mention of any substance abuse disorder in the rating decision. The VA outpatient treatment records received following the May 1995 RO decision show in mid 1995 that the veteran reportedly drank heavily with increased stress and had lost a job and marriage secondary to drinking. The diagnostic impressions included PTSD by history, alcoholism and polydrug abuse. Additional contemporaneous outpatient reports mention that he had been drinking since age 17. It was also noted that he admitted to having used drugs in Vietnam and to have begun psychiatric care in early 1995. It was also reported that he denied any significant period of sobriety in over 20 years. The veteran's claim for service connection of drug and alcohol abuse as secondary to service-connected PTSD was submitted by his attorney in June 1996. The RO in an October 1996 letter mailed to the veteran and his attorney advised that a statement from a physician with supporting rationale substantiating claimed secondary service connection should be submitted. The veteran's attorney in a November 1996 letter to the RO requested an examination to determine if there was a secondary relationship in the veteran's case. The letter states that consistent with VA's duty to assist, the examination should be scheduled immediately. The VA outpatient treatment records on file show the veteran was seen complaining of a "pinched nerve" that kept him awake at night and seeking something to help him sleep. Psychiatrically he was described as upset about losing welfare benefits, not being able to work and frustrated trying to get "SC condition." He was to try a sleeping pill. In late December there is a reference to PTSD and history of polysubstance abuse, and a physician's advice to stop drinking. A VA psychiatric examiner in January 1997 reported that the veteran stated he had a long history of drug and alcohol abuse and that he started early in his military life, that he denied having abused drugs and alcohol before he entered the military, and that because of his drinking problem he had lost many jobs and ruined two marriages. The examiner opined that it seemed that the abuse of alcohol and drugs had started before the veteran started having PTSD symptoms. The examination report continues noting the veteran stated that his Social Security Administration (SSA) award for alcoholism he had received since 1994 was being terminated because of a decision to discontinue benefits based upon alcohol and drug abuse. In describing his complaints, the veteran reported that his sleep was impaired and the only thing that would help him sleep was drink. He said that he used marijuana when he became very tense or anxious. The diagnosis was PTSD. The veteran's attorney provided a copy of a March 1997 SSA determination favorable to the veteran. It confirmed that recently enacted public law required a new determination for persons with an alcohol problem. The decision mentions various impairments including PTSD, recurrent major depression and personality disorder, and notes a history of alcohol abuse in partial remission that was considered not material to the determination of his case. A psychiatric review form attached to the decision noted the presence of substance addiction disorders that would be evaluated under either/or affective disorder, anxiety disorders or personality disorders. It was also restated that a history of alcohol abuse was not material to the determination of the veteran's case. In December 1998 the veteran's attorney submitted written argument asserting that it was the veteran's contention that the symptoms of PTSD cause him to engage in substance abuse. Counsel for the appellant argued that the records were replete with medical evidence that links the veteran's substance abuse problems with the PTSD symptoms he experienced. Counsel referred to a psychologist's note of November 1996 that reported the veteran often drank beer in order to improve the quality of his sleep and a statement in November 1996 that the "claimant states that he suffers from PTSD and this drove him to polysubstance abuse". Counsel in requesting a remand for another examination asserted that the VA examiner in January 1997 failed to comment on whether the appellant's substance abuse was secondary to PTSD. In August 2002, the Board determined that additional medical expertise was needed to render an equitable disposition in this case and requested a medical opinion from the Veterans Health Administration (VHA). In August 2002, the VHA physician, a specialist in psychiatry, provided an expert medical opinion in response to the specific Board request. The physician essentially stated that after reviewing all medical records, there was sufficient support that the veteran's polysubstance abuse including alcoholism is at least as likely as not caused by service-connected PTSD. Criteria Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by service- connected disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non- prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301. Controlling law provides that service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by service, but no compensation shall be paid if the disability was the result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. With respect to alcohol and drug abuse, section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Public Law No. 101-508, § 8052, 104 Stat. 1388, 1388-351, prohibits, effective for claims filed after October 31, 1990, payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse. See 38 U.S.C.A. § 1110. Section 8052 also amended 38 U.S.C. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(n), 3.301 (2001). Here, the veteran argues that he developed drug and alcohol abuse secondary to service-connected PTSD. Corresponding regulations provide that alcohol abuse and drug abuse, unless they are a "secondary result" of an "organic disease or disability," are considered to be "willful misconduct." See 38 C.F.R. §§ 3.301(c)(2), 3.301(c)(3). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3). In VAOPGCPREC 2-98, the VA General Counsel held that 38 U.S.C.A. § 105(a), as amended by section 8052(a) of the OBRA, prohibits a grant of "direct service connection" for drug or alcohol abuse on the basis of incurrence or aggravation in line of duty during service. The CAVC held in Barela v. West, 11 Vet. App. 280 (1998) that service connection, but not compensation, could be granted for drug or alcohol abuse on a secondary basis. In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), rehearing en banc denied, 268 F.3d 1340 (2001), the CAFC found that 38 U.S.C.A. § 1110 permits a veteran to received compensation for an alcohol-abuse or drug-abuse disability acquired as secondary to, or as a symptom of, a veteran's service-connected disability. According to the Fed. Cir., § 1110 precludes compensation only in two situations: (1) for primary alcohol abuse disabilities; and (2) for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse. The CAFC defined "primary" as meaning an alcohol abuse disability arising from voluntary and will drinking to excess. In Allen, the CAFC held that a veteran can receive compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his or her service- connected disability. The Allen decision explicitly overruled prior decisions on this subject from the CAVC, including in particular Barela v. West, 11 Vet. App. 280 (1998). (The Allen decision also appears to overrule, either in total or in part, two precedent opinions issued by the VA General Counsel, including VAOPGCPREC 2-98 and VAOPGCPREC 7- 99). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. Analysis A comprehensive review of the evidence shows that in January 1997 a VA psychiatric examiner opined that it seemed that the abuse of alcohol and drugs started before the veteran started having PTSD symptoms. Significantly, the Board notes that the August 2002 VHA opinion is unequivocal in the finding that the veteran's polysubstance including alcohol abuse developed secondary to service-connected PTSD. Furthermore, the VHA physician provided a detailed rationale for his conclusions. For the reasons stated above, the Board finds that the evidence is in relative equipoise regarding the veteran's claim. Accordingly, he is entitled to the application of the benefit of the doubt and the Board finds that he developed drug and alcohol abuse as secondary to service-connected PTSD, thereby warranting a grant of entitlement to service connection on a secondary basis. See Gilbert, supra. ORDER Entitlement to service connection for drug and alcohol abuse as secondary to service-connected PTSD is granted. ____________________________________________ RONALD R. BOSCH Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.