Citation Nr: 1439379 Decision Date: 09/04/14 Archive Date: 09/09/14 DOCKET NO. 04-04 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for cocaine addiction, to include as related to the postoperative residuals of nasal bone fracture with scarring. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from September 1986 to June 1988. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a May 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In March 2006, the Veteran's case was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. In a decision of February 2011, the Board denied entitlement to service connection for cocaine addiction, to include as secondary to the postoperative residuals of nasal bone fracture with scarring. That decision was subsequently appealed to the United States Court of Appeals for Veterans Claims (Court), which, in a Memorandum Decision of July 2012, vacated the Board's February 2011 decision, and, in so doing, remanded the case to the Board for action consistent with the Memorandum Decision. The case is now, once more, before the Board for appellate review. FINDINGS OF FACT 1. Service connection is currently in effect for the postoperative residuals of nasal bone fracture, with scarring. 2. The competent and credible evidence does not show that it is at least as likely as not that the Veteran's cocaine addiction was caused by the topical administration of cocaine and Lidocaine during an inservice surgery to repair the Veteran's nasal bone fracture, alone or in combination with the administration of Tylenol #3 for postoperative pain relief, with the result that the competent evidence preponderates against the Veteran's claim. 3. The Veteran's cocaine abuse in service was due to his own willful misconduct. CONCLUSION OF LAW The criteria for an award of service connection for cocaine addiction have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in January 2003, February 2005, and April 2006 of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, to include testimony presented at a hearing before the undersigned Veterans Law Judge in December 2005, service treatment records, and both VA (including Virtual VA and Veterans Benefits Management System) treatment records and examination reports, as well as various documents and treatises, and statements by the Veteran's family members. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122, 129-30 (2000). Service Connection The Veteran in this case seeks entitlement to service connection for cocaine addiction, to include as related to the service-connected postoperative residuals of nasal bone fracture with scarring. In pertinent part, it is contended that the Veteran's longstanding addiction to cocaine is the direct result of the topical administration of cocaine and Lidocaine during an inservice surgery to repair the Veteran's nasal bone fracture, alone or in combination with the administration of Tylenol #3 for postoperative pain relief. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (2013). In order to establish direct service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). However, primary drug or alcohol abuse are not disabilities for which service connection may be granted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.301(c)(d) (2013); see also Allen v. Principi, 237 F.3d 1368, 1376-1377 (2001). 38 U.S.C.A. § 1131 (West 2002), which applies to this claim given that the Veteran served during peacetime, states: For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in the active military, naval, or air service during other than a period of war, the United States will pay to any Veteran thus disabled who is discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter...but no compensation shall be paid if the disability is the result of the Veteran's own willful misconduct or abuse of alcohol or drugs. (Emphasis added.) "[T]he progressive and frequent use of drugs to the point of addiction will be considered willful misconduct." 38 C.F.R. § 3.301(c)(3) (2013). Furthermore, an injury or disease incurred during active service is not deemed to have been incurred in the line of duty if such injury or disease was the result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For purposes of applying the above rule, drug abuse means "the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or nonprescription 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(d) (2013). Notwithstanding the aforementioned, service connection for a drug abuse disorder is possible if the abuse of drugs was acquired secondary to, or is a symptom of, a service-connected disability. See Allen, 237 F.3d at 1377, 1381. However, "Veterans can only recover if they can adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder...such 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, or the alcohol or drug abuse disability is not due to willful wrongdoing." Id. at 1381. Accordingly, even if the Veteran began his use of cocaine in service, he is precluded from receiving compensation for cocaine addiction unless the evidence establishes that his cocaine addiction is due to a service-connected disability. In this case, the Veteran is service connected for the postoperative residuals of nasal bone fracture with scarring. As previously indicated, it is contended that the Veteran's inservice treatment for his nasal fracture resulted in cocaine addiction. Accordingly, his contentions fall into the exception to the prohibition on service connection for drug abuse disorders set forth in Allen. In that regard, a review of service treatment records discloses that, in September 1987, while in service, the Veteran sustained a nasal bone fracture with laceration for which he received treatment in the form of a closed reduction and splint. During the course of the closed reduction, 4cc's of 4% cocaine and 5.4cc's of 1% Lidocaine were administered. The Veteran was also prescribed 30 tablets of Tylenol #3 for pain relief. Pertinent evidence of record is to the effect that the Veteran began using cocaine in service, and, in June 1988, received a general (under honorable conditions) discharge from service for misconduct, specifically, drug abuse. Significantly, in a written statement opposing his discharge, the Veteran contended that, after he was notified of the discharge proceedings, he "began looking at [his] hospital records to try to find some explanation" for his drug abuse. He reported that, after looking at his service treatment records, he discovered that he had been treated for a broken nose and given cocaine. The Veteran thought that since a drug and alcohol counselor told him that it was possible to get "hooked" on cocaine with a single use, it was "possible" that the use of cocaine during his nasal surgery led him to use cocaine illegally. The Veteran also indicated that his nasal injury caused him to become withdrawn and shy, and conjectured that loneliness, in conjunction with the use of cocaine during his nasal surgery, contributed to his illicit drug abuse. At the time of a VA psychiatric examination in April 2003, the Veteran reported that he had begun abusing cocaine while he was in service. The Veteran additionally reported that in service, medical cocaine was used to numb his nose after he split his nostril and fractured his nose, and that he believed that this led to his cocaine addiction. The Veteran reported that he felt out of place in service, and that he felt that it was unfair that he had been discharged for using cocaine. The Veteran continued to abuse cocaine after service, and went through several detoxification programs, finally becoming clean in 2001. Significantly, in the opinion of the examining psychiatrist, he was unaware of any medical studies which documented that medical cocaine could cause cocaine addiction, though he could not determine in the Veteran's case whether medical cocaine caused the Veteran's cocaine addiction. On subsequent VA psychiatric examination in May 2007, the Veteran again reported that he had fractured his nose in service and had it reset. According to the Veteran, he had been given some Lidocaine plus a topical cocaine preparation for anesthesia. Significantly, according to the Veteran, he had undergone no further procedures on his nose, and was never again administered Lidocaine or any cocaine preparation. According to the Veteran, he began to experience "cravings" about a week later. One or two weeks following his surgery, the Veteran reportedly began using cocaine illicitly. The Veteran was subsequently discharged from military service due to his cocaine abuse. The Veteran continued to use cocaine sporadically since that time, with his most recent use being three weeks prior to the examination. According to the Veteran, he attended treatment programs six or seven times, but continued to abuse cocaine. Significantly, by the psychiatrist's own admission, because he was not an ear, nose and throat doctor who utilized topical cocaine preparations, he was unable to provide an opinion as to whether a single topical administration of cocaine could cause cocaine addiction. Nor did he know the strengths of such preparations. According to the psychiatrist, he was neither trained nor experienced in addiction treatment to the point where he had firsthand knowledge of the propensity for addiction from a single use of cocaine. However, he was unaware of any psychiatric literature which would substantiate the one-time use of a topical cocaine preparation as being the significant causative force in a person's 20-some year abuse problem with cocaine. Accordingly, the psychiatrist suggested that an opinion be obtained from someone trained in that area. Following a review of the Veteran's claims folder in October 2007, a VA psychologist concluded that it was not possible to state with any medical certainty whether the Veteran's single use of the preparations in question for a medical procedure while in the military could have resulted in his involvement with cocaine over the past 20 years. However, she was unaware of any research findings which supported the Veteran's contentions that a one-time use of these preparations at the dosage noted and for the purpose indicated would be a significant causative force in his lengthy involvement with cocaine. Rather, in her opinion, the Veteran's problems with addiction most likely could not be attributed to his inservice operative procedure. In correspondence of December 2007, the Veteran's private physician wrote that he had treated the Veteran for his cocaine addiction. He further indicated that the Veteran had reported that he had been treated with intranasal cocaine and Lidocaine to externally fixate his nasal fracture, following which he became "agitated and sweaty," and went to get cocaine for the first time ever within a few days of his surgery. Moreover, according to the Veteran, he had intense cravings for cocaine ever since his surgery. According to the Veteran's private physician, the Veteran suffered from a chronic cocaine addiction which began immediately after medical treatment for a fractured nose with Lidocaine and cocaine. He further indicated that Lidocaine enhances and prolongs the action of cocaine, adding to the reinforcing properties of that drug, and that Tylenol #3 "adds to the addictive nature of cocaine as another drug that is reinforcing in the addictive center of the brain." Finally, according to the Veteran's private physician, it was at least as likely as not that the Veteran's chronic cocaine addiction was due to the medical administration of cocaine to externally fixate the Veteran's nasal fracture in September 1987. In correspondence of August 2009, a private Master's-level "licensed clinical addiction specialist" offered her opinion that "a major adverse reaction occurred during the ingestion of cocaine and Lidocaine triggering [the Veteran's] chemical dependency. Cocaine is one of the most addictive narcotics there is. An additional risk is presented when Lidocaine is given in combination with cocaine. I feel confident stating that an individual can become addicted after a single use of this powerful combination." She further indicated that it was more likely than not that the Veteran's cocaine addiction was caused by the administration of cocaine and Lidocaine, as well as Tylenol #3. She reasoned that medical cocaine was likely more potent than contaminated street cocaine, and that it was "reasonable" that the Veteran had an "allergic reaction" or genetic predisposition which made him vulnerable to developing "the disease of addiction." In September 2009, the Board sought an expert medical opinion concerning whether the topical use of cocaine and Lidocaine at the time of the Veteran's nasal procedure could have caused his cocaine addiction. In December 2009, that VA medical expert, an ear, nose and throat surgeon, replied that it was "unlikely and actually not reported that a one-time use of cocaine can cause addiction to cocaine. As ear, nose and throat surgeons, we use this routinely to reduce nose fractures and have never had a problem." The VA physician additionally reported that Lidocaine was commonly used in ear, nose and throat surgeries, sometimes with cocaine, and that while she was not certain of any prolonged effects, the one-time use was not likely to cause cocaine addiction. In order to obtain a more comprehensive opinion, the Board sought another medical expert opinion. In August 2010, that medical expert, a VA otolaryngologist, reported that he had conducted an extensive review of the literature and medical management of the Veteran's case. He noted that the American Academy of Otolaryngology and Head and Neck Surgery (AAOHNS) had indicated that they considered cocaine to be a valuable anesthetic and vasoconstriction agent when used in the management of a patient. The otolaryngologist further noted that the U.S. Drug Enforcement Administration (DEA) had indicated that cocaine could be administered by a doctor for legitimate medical uses such as local anesthesia for some eye, ear, and throat surgeries. Significantly, while potential side effects of the drug had been established, there were no reported cases of a one-time topical use leading to cocaine addiction. Moreover, notwithstanding his review of several hundred publications, he had failed to find a single report relating potential for addiction when cocaine was used on a one-time basis as a topical anesthetic agent. Significantly, while the combined use of Lidocaine would enhance the anesthetic effect, there was nothing in the literature to indicate that it would enhance the potential for cocaine addiction. Finally, there were no reports from DEA and nothing in the literature to support that Tylenol #3 use reinforced the use of cocaine when it was used on a one-time topical anesthetic basis. The evaluating VA otolaryngologist further indicated that he had over 40 years of personal experience with the use of cocaine as a topical anesthetic and vasoconstriction agent in combination with Lidocaine, as well as with the use of Tylenol #3 for postoperative pain relief. Moreover, while during the course of his practice, he had had the opportunity to follow many of his patients for many years, he saw no instance of cocaine addiction arising from this practice. Significantly, according to the evaluating otolaryngologist, he had considerable experience managing the nasal effects of cocaine while in private practice in the 1970's, and became very familiar with the nasal symptoms of such patients. However, he had not seen similar signs in patients who had nasal surgery with a one-time use of topical cocaine combined with Lidocaine. The physician concluded that it was unlikely that the Veteran's lifelong cocaine addiction was caused by the use of 4cc's of 4% cocaine with Lidocaine, followed by the use of Tylenol #3 for treatment of a nasal fracture in service. Finally, the evaluating otolaryngologist indicated that he had reviewed the opinions of the Veteran's private physician and the clinical addiction specialist, but "found no evidence to support their opinion." Moreover, there was nothing he had found through literature review and no cautions from AAOHNS or the DEA that such use carries with it the potential for cocaine addiction. In a response to the aforementioned VA otolaryngologist's opinion, the Veteran submitted a written statement reiterating that he believed that his cocaine addiction was caused by the one-time administration of topical cocaine and Lidocaine during his nasal reduction procedure in combination with being prescribed Tylenol #3. In addition, he submitted internet article which generally stated that a single use of cocaine can cause cocaine addiction. In correspondence of June 2013, the same "licensed clinical addiction specialist" who provided the August 2009 opinion wrote that she had conducted a second assessment of the Veteran, in addition to performing an "extensive review" of the Veteran's claims file, including previous medical opinions and medical articles pertaining to cocaine addiction. She further indicated that she had reviewed the Veteran's medical records, including past/present medical diagnoses and substance abuse treatment records, as well as the types and dosages of medications the Veteran received during his inservice nasal surgery in September 1987. In her opinion, the Veteran suffered from "chronic addiction to cocaine as a disease entity." She further indicated, based on her experience and research, "it was her professional opinion" that it was "very probable" which is to say, at least as likely as not the case, that the Veteran developed cocaine addiction as the result of the administration of 4cc's of 4% cocaine and 5.4cc's of 1% Lidocaine during the procedure to externally fixate his fractured nose (in 1987). In an attempt to further clarify the apparent ambiguity surrounding the Veteran's claim, the Board, in September 2013, sought the opinion of an independent medical expert. That expert, in early January 2014, offered the following opinion: I am a board-certified Otolaryngology-Head and Neck Surgeon with additional training in facial plastic and reconstructive surgery. Throughout my medical training at three institutions, I have been exposed to many surgeons in my field who utilize 4% topical cocaine for its excellent vasoconstrictive and decongestant properties in nasal surgery such as closed reduction. These well-established physicians used the drug for the duration of their careers. It has not been my practice to utilize topical cocaine for nasal surgery only because of the onerous paperwork associated with obtaining the medication in our hospital and for the close effect achievable with alternate medications. In a different setting, I would have no reservation about using the drug in the appropriate patient, one that does not have underlying cardiovascular disease. After reviewing your excellent summary and [the Veteran's] medical chart, I performed my own review of the medical literature, with careful attention to papers that your previous reviewer...would have reviewed plus any additional newer works in the medical literature. Despite the temporal relationship to [the Veteran's] nasal surgery and the start of his cocaine usage-which seemed to vary in patient reported length from one to two weeks after surgery to within a few days-there is insufficient evidence in the medical literature to document the causal relationship between operative use and addiction. Whereas the addiction specialists you cite give compelling circumstantial evidence, and I understand the powerfully addictive properties of cocaine, it is notable that there is not a single citation or piece of peer-reviewed literature which documents iatrogenic cocaine addiction after nasal surgery. As you note, the American Academy of Otolaryngology-Head and Neck Surgery considers cocaine to be a valuable anesthetic and vasoconstricting agent when used as part of the treatment of a patient by a physician. No other single drug combines the anesthetic and vasoconstricting properties of cocaine.' (http://www.entnet.org/Practice/Policy Medical Use Cocaine.cfm). This policy was adopted on December 4, 1988, with (the) most recent revision on May 6, 2013. Numerous peer-reviewed publications cite the widespread use by U.S. physicians. Also, two-thirds of United Kingdom otolaryngologists administer topical cocaine according to a 2003 survey (Current Practices of Cocaine Administration by United Kingdom Otorhinolaryngologists. De R, Uppal HS, Shehab ZP, Hilger AW, Wilson PS, Courteney-Harris R. J. Laryngol. Otol. 2003 (Feb; 117(2):109-12). Therefore, based on absent literature establishing a relationship with 4% topical cocaine and subsequent use or addiction in the large body of medical works; the endorsement of its use for over 25 years by our Academy; and widespread intra-operative use by physicians I have worked with throughout the world, it is my belief that the Veteran's lifelong addiction to cocaine is unlikely (less than 50 percent likely) to have been caused by the one-time topical administration of cocaine and Lidocaine during his inservice nasal surgery, with or without Tylenol #3. This opinion is consistent with the psychiatric examination in April 2003, psychiatric examination in May 2007, and psychology examination in October 2007 (all of which were) unaware of any psychiatric literature that would substantiate the claim; and the otolaryngology reviews...in December 2009 and...August 2010 (which) also failed to find evidence of causation or a single publication relating nasal administration for surgery and addiction. I am in disagreement with (the Veteran's private physician's) assessment in December 2007 and the (clinical addiction specialist's) assessment in August 2009 (and later in June 2013) which opined on the pharmacokinetics and addiction, but failed to show causation to the nasal surgery. I would respectfully ask these two dissenters to provide any peer-reviewed literature or other scientific works. Barring this, I conclude the cocaine addiction is unlikely related to (the Veteran's) nasal surgery. The Board finds the aforementioned opinions of multiple VA psychiatrists, psychologists, and otolaryngologists highly probative, because those opinions were based upon a review of the Veteran's entire claims folder, as well as other pertinent medical records, and, in most cases, full examinations, to include both history and clinical findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's/examiner's access to the claims file, and the thoroughness and detail of the opinion). The VA physicians/psychologists reviewed the Veteran's claims folder, discussed the Veteran's medical history, provided well-reasoned medical opinions, and alluded to the evidence which supported those opinions. See Hernandez-Toyens v. West, supra. Significantly, in those instances where the examiners were unable to state categorically that the Veteran's cocaine addiction was unrelated to the inservice topical administration of cocaine/lidocaine, they universally indicated that they were unaware of any medical studies that the one-time use of a topical cocaine preparation could result in lifetime addiction to cocaine. Moreover, at least two VA otolaryngologists, who would presumably have considerable expertise in the field, including one who reviewed "several hundred publications," found no relationship between the Veteran's lifelong cocaine addiction and the use of cocaine with Lidocaine followed by the use of Tylenol #3 for treatment of his nasal fracture in service. Significantly, and as noted above, following a review of the Veteran's entire claims folder and medical records, as well as the pertinent medical literature, an independent medical expert unaffiliated with VA offered his opinion that the Veteran's lifelong addiction to cocaine was unlikely (which is to say, less than 50 percent likely) to have been caused by the one-time topical administration of cocaine and Lidocaine during his inservice nasal surgery, with or without Tylenol #3. According to the independent medical expert, while the Veteran's private physician and "addiction specialist" provided compelling circumstantial evidence, they failed to provide a single citation or piece of peer-reviewed literature documenting iatrogenic cocaine addiction following nasal surgery. Under the circumstances, the medical expert was in disagreement with their opinion regarding the pertinent pharmacokinetics and addiction, which failed to show any causation to the Veteran's nasal surgery. In evaluating the Veteran's claim, the Board has a duty to assess the credibility and weight to be given to the evidence of record. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In that regard, the Veteran (as well as his private physician and private addiction specialist) have attributed his lifelong cocaine addiction to the one-time topical administration of cocaine/Lidocaine followed by Tylenol #3 at the time of his inservice nasal surgery. However, at present, there exists no persuasive evidence that the Veteran's cocaine addiction is in any way causally related to the one-time topical application of cocaine/Lidocaine in service. Rather, a preponderance of the evidence is against the Veteran's claim for service connection. The Board acknowledges the Veteran's statements and testimony regarding the origin of his cocaine addiction. However, the Board rejects those assertions to the extent that the Veteran seeks to etiologically relate his dependence on cocaine to his inservice nasal surgery. The Veteran's statements and history, it should be noted, when weighed against the objective evidence of record, are neither credible nor of probative value. Moreover, the Veteran, as a layperson, is not competent to establish a "cause and effect" relationship between the inservice topical application of cocaine/Lidocaine and his subsequent cocaine addiction. Rather, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran possesses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the aforementioned, the Board is unable to reasonably associate the Veteran's lifelong cocaine dependence with any incident or incidents of his period of active military service, to include, specifically, his inservice nasal surgery. Accordingly, service connection must be denied. ORDER Service connection for cocaine addiction, to include as related to the postoperative residuals of nasal bone fracture with scarring, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs