Citation Nr: 1426605 Decision Date: 06/12/14 Archive Date: 06/26/14 DOCKET NO. 09-48 743 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a substance abuse disorder, to include alcohol and cocaine abuse, as secondary to the service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a lung disorder. 3. Entitlement to an increased disability rating in excess of 30 percent for PTSD. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from March 1962 to March 1965, and November 1965 to November 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the RO in Roanoke, Virginia, which, in pertinent part, denied service connection for drug and alcohol abuse. This matter also came before the Board on appeal from an October 2010 rating decision of the RO, which denied service connection for asbestosis. After receiving additional evidence and a request for reconsideration from the Veteran, the RO again denied service connection for asbestosis in a rating decision dated March 2012. Finally, this matter also came before the Board on appeal from a November 2013 rating decision of the RO denying an increased disability rating in excess of 30 percent for PTSD. In the December 2009 substantive appeal, via a VA Form 9, the Veteran requested a hearing before the Board as to the issue of service connection for a substance abuse disorder. In a letter dated January 2010, the Veteran submitted a written request to withdraw the hearing request. The Veteran did not request a hearing for the other issues on appeal. The Board finds there is no hearing request pending at this time. 38 C.F.R. § 20.702(e) (2013). The Board has reviewed the physical claims files and both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to insure a total review of the evidence. In order to encompass all claimed symptoms of disability, the Board has broadened and reframed the issues in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The issues of service connection for a lung disorder and an increased disability rating for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has a currently diagnosed substance abuse disorder, including alcohol and cocaine (crack) abuse. 2. The substance abuse disorder is proximately due to or the result of the service-connected PTSD. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a substance abuse disorder, to include alcohol and cocaine abuse, as secondary to the service-connected PTSD, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.326(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). In this decision the Board grants service connection for a substance abuse disorder, to include alcohol and cocaine abuse, as secondary to the service-connected PTSD. As such action represents a complete allowance of the Veteran's appeal as to that issue, no further discussion of VA's duties to notify and to assist is necessary at this time. Service Connection for a Substance Abuse Disorder as Secondary to PTSD Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. Service connection may also be granted for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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 the 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 (West 2002); 38 C.F.R. § 3.1(m) (2013). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs or alcohol to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c) (2013). Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. Id. However, alcohol and drug-related disorders are recognized as disorders within the medical community. See American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th. Ed. 1994) (DSM-IV). Moreover, while service connection for alcohol and drug abuse disabilities on a primary basis is barred, an alcohol and/or drug abuse disability arising as a direct result of a psychiatric condition may be service connected. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001) (interpreting 38 U.S.C.A. § 1110). In Allen, overruling Barela v. West, 11 Vet. App. 280 (1998), the Federal Circuit Court held that veterans can recover for an alcohol or drug abuse disability secondary to a service-connected disability if they can adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disability. Compensation would only result where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability. The Allen case primarily concerns situations where a veteran has a service-connected psychiatric disorder and is attempting to receive additional compensation, etc., for his alcohol and/or drug abuse on the premise that it is proximately due to or the result of his service-connected psychiatric disability. VA's National Center for PTSD (PTSD Center), in a January 1, 2007 statement, confirmed the possibility of a link between PTSD and alcohol-related disorders. The PTSD Center stated, "People with PTSD are more likely than others with the same sort of background to have drinking problems." Further, the PTSD Center found: Up to three quarters of those who have survived abusive or violent trauma report drinking problems. Up to a third of those who survive traumatic accidents, illness, or disasters report drinking problems. Alcohol problems are more common for survivors who have ongoing health problems or pain. Sixty to eighty percent of Vietnam Veterans seeking PTSD treatment have alcohol use problems. War Veterans with PTSD and alcohol problems tend to be binge drinkers. Binges may be in response to memories of trauma. National Center for PTSD, "PTSD and Problems with Alcohol Use" (January 1, 2007) (found online at http://www.ptsd.va.gov/public/problems/ptsd-alcohol-use.asp). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Veteran contends that service connection is warranted because his alcohol and cocaine abuse developed as a result of his service-connected PTSD. Multiple VA PTSD medical and examination records reflect that the Veteran has been diagnosed with alcohol and cocaine (crack) abuse. Various VA medical records, and the reports from the October 2008 and September 2013 VA PTSD examinations, convey that the Veteran's alcohol and cocaine abuse are in full remission. The Board notes that the absence of recurrence of symptoms of the Veteran's substance abuse now does not render either substance abuse diagnosis invalid. Such considerations go to the severity of the impairment, which will be rated at a later time. Further, recent VA medical records indicate that the Veteran's alcohol abuse may no longer be in remission. VA medical records throughout the appeal period reflect that the Veteran would consume at least a minimal amount of alcohol during the period in which his alcohol abuse disorder was supposedly in remission. Additionally, the Board notes that, while a November 2012 VA mental health note has the Veteran's alcohol and cocaine dependence in remission, a July 2013 VA mental health note only has the cocaine dependence listed as in remission. A May 2013 VA preoperative nursing note conveys that the Veteran reported consuming four beers per day. For these reasons, the Board finds that the Veteran has a current substance abuse disorder. After a review of all the evidence, lay and medical, the Board finds that the Veteran's substance abuse disorder, to include alcohol and cocaine abuse, was due to or the result of the service-connected PTSD. The VA examiners at the August 2006, October 2008, and September 2013 VA PTSD examinations all opined that the Veteran's alcohol and cocaine abuse were due to or the result of his service-connected PTSD. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for a substance abuse disorder, to include alcohol and cocaine abuse, as secondary to the service-connected PTSD, have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a substance abuse disorder, to include alcohol and cocaine abuse, as secondary to the service-connected PTSD, is granted. REMAND Service Connection for a Lung Disorder VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on his claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On the question of current disability, a February 2010 private medical record conveys that the Veteran had parenchymal disease with small irregular opacities and associated pleural changes consistent with pulmonary asbestos-related exposure. A subsequent private medical opinion, dated October 2010, diagnosed the Veteran with pulmonary asbestosis based on his occupational exposure to asbestos with appropriate latency. On the question of nexus to service, the VA examiner at a January 2012 VA respiratory examination opined that, based upon the results of a 4-view chest X-ray and B-reader, the Veteran did not have a diagnosis of asbestosis, but instead had a diagnosis of restrictive lung disease with some deterioration. No opinion was given as to the cause of the restrictive lung disease. In a subsequently requested October 2013 VA medical opinion, the VA examiner opined that the Veteran's diagnosed asbestosis was less likely than not (less than 50 percent probability) incurred in or caused by the Veteran's service, as there was no finding of asbestosis on the most recent X-rays and/or B-reads; therefore, there was no pathology to confirm a diagnosis. There is not sufficient competent evidence of record to decide this claim. No opinion was rendered as to whether the Veteran's previously diagnosed restrictive lung disease was related to service. As such, a remand is necessary to obtain a new VA opinion as to whether any identified lung disability is related to the Veteran's active service, including as due to asbestos exposure. Increased Disability Rating for PTSD In November 2013, the RO issued a rating decision denying an increased disability rating in excess of 30 percent for the service-connected PTSD. Subsequent to that decision, in November 2013, the Veteran's previous representative submitted a Statement of Accredited Representation in Appealed Case which provided additional arguments as to why the Veteran was entitled to service connection for substance abuse, and also noted that the Veteran had a 30 percent disability rating for PTSD that he believed did "not adequately represent the true severity of his disabling condition." The RO accepted that statement as a timely notice of disagreement (NOD), and, in a letter dated February 2014, the RO informed the Veteran that his file would be reviewed, and if the appeal remained denied, a Statement of the Case (SOC) would be issued. To date, no such SOC has been issued. The Court has directed that, where a veteran has submitted a timely NOD with an adverse decision and the RO has not subsequently issued a SOC addressing the issue, the Board should remand the issue to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the issues of service connection for a lung disorder and an increased disability rating for PTSD are REMANDED for the following action: 1. Request a VA pulmonary/respiratory examination opinion that addresses the relationship, if any, between any identified lung disability and service, including as due to asbestos exposure. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the opinion rendered. If an examination is required, a detailed history of relevant symptoms should be obtained from the Veteran. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should advance the following opinion: Is it as likely as not (i.e., probability of 50 percent or more) that any identified lung disability, including restrictive lung disease and/or asbestosis, had its onset during active service or otherwise originated during active service? Should the examiner find that any identified lung disability is not related to service, the examiner should advance the following supplemental opinion: Taking as true that the previous private diagnosis of pulmonary asbestosis was correct, is it as likely as not (i.e., probability of 50 percent or more) that the asbestosis was caused by in-service exposure to asbestos? 2. Then readjudicate the Veteran's claim for service connection for a lung disorder. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. 3. Issue a SOC to the Veteran which addresses the issue of entitlement to an increased disability rating in excess of 30 percent for PTSD. The Veteran should be given the appropriate opportunity to respond to the SOC. The RO should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the SOC unless he perfects his appeal. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs