Citation Nr: 0737212 Decision Date: 11/27/07 Archive Date: 12/06/07 DOCKET NO. 99-20 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a gambling disorder secondary to service-connected post-traumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran served on active duty from January 1981 to December 1997. The instant appeal arose from a December 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Fargo, North Dakota, which denied a claim for service connection for a psychiatric illness due to a gambling disorder. In March 2000, October 2001, August 2003, and May 2007, the Board remanded the claim for additional development. In September 2007, the veteran was afforded a hearing before Holly E. Moehlmann, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). FINDING OF FACT The veteran has a gambling disorder due to his service- connected PTSD. CONCLUSION OF LAW The criteria for service connection for a gambling disorder, secondary to service-connected disability, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection In September 1998, the RO denied the veteran's claim of entitlement to service connection for a gambling disorder. The veteran has appealed. The veteran asserts that he has a gambling disorder as a result of his service-connected PTSD. In this regard, service connection is currently in effect for PTSD, evaluated as 50 percent disabling. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a "[d]isability which is proximately due to or the result of a service- connected disease or injury." 38 C.F.R. § 3.310(a); Harder v Brown, 5 Vet. App. 183, 187-89 (1993). Furthermore, the U.S. Court of Appeals for Veterans Claims (Court) has held that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service- connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The veteran's service records include his discharge (DD Form 214), which notes that he received a discharge under honorable conditions (general), and that the narrative reason for separation was "misconduct." The veteran's personnel file includes a "Special Court Martial Order," dated in May 1997, which shows that he was charged with offenses related to use of his government credit card. Memorandums, dated between November and December of 1997, note that the veteran was to be administratively separated from service, and that he had written a number of checks drawn on insufficient funds, failed to pay other debts, and that he had been jailed in a civilian facility for writing bad checks. Associated documents show that he received a number of disciplinary actions for various offenses, to include issuing checks or drafts without sufficient funds, and a failure to pay debts. The veteran's service medical records show that between November and December of 1996, he was seen for "intake intervention," at which time he reported a six to seven-year history of problematic gambling, with a bankruptcy in 1992. The Axis I diagnosis was pathological gambling. The post-service medical evidence includes a VA examination report, dated in September 1998, which shows that the veteran reported that during service he had been an air traffic controller, that he had gone through a bankruptcy in 1992, and that he had lost at least two vehicles. He indicated that he had recently been betting on horses, and that it gave him a feeling of excitement when he won, although he lost most of the time. He stated that during service in Korea in 1994-95, he drank alcohol heavily, as gambling was not allowed. He stated that he had made unsuccessful attempts to stop gambling. He reported having at least two convictions in civilian courts for writing bad checks. The Axis I diagnoses were pathological gambling, and alcohol abuse, rule out dependence. A VA psychiatric opinion, dated in July 2002, notes that the claim had been remanded to determine whether or not pathological gambling was a personality disorder. The Axis I diagnoses were PTSD, pathological gambling disorder, and alcohol dependence and abuse. The examiner stated, "It can be argued that the job of an air traffic controller is one of sufficient stress to precipitate a stress disorder diagnosis. If that is the case and the gambling addiction developed as a means of coping and avoiding dealing with PTS symptoms then his gambling and behaviors that were involved with and supported his gambling are much the same as the symptoms of alcohol and drug abuse that are seen as a way of coping in someone with posttraumatic stress disorder symptomology." A VA PTSD examination report, dated in July 2007, notes the veteran's relevant history. The veteran was noted to have associated his gambling with alcoholism, and to have stated that he felt much less pressure now that he was no longer an air traffic controller. He reported that he no longer bet on horses or blackjack, although he occasionally played poker for money. The Axis I diagnoses were PTSD, pathological gambling "in remission," and alcohol dependence "in remission." The examiner noted that the veteran had been found to have PTSD associated with his duties as an air traffic controller, and that his alcohol abuse and gambling developed within the context of this highly stressful duty. The examiner further stated that the veteran's gambling disorder served as an escape and temporary relief from his daily pressures. He concluded, "The patient's history and the sequence of developing psychopathology are consistent with the understanding that the patient had developed a stress disorder to the demands of air traffic control and the subsequent development of alcohol dependence and pathological gambling were symptoms of the stress disorder, reflecting psychological strategies for coping with the discomfort." The Board has determined that service connection for a gambling disorder is warranted. The July 2007 VA opinion is a competent medical opinion showing that there is a nexus between the veteran's gambling disorder and his service- connected PTSD. There is no competent, countervailing medical opinion of record to refute this opinion. The July 2007 VA opinion is also consistent with the veteran's demonstrated conduct during service, and his inservice diagnoses of pathological gambling, as well as the July 2002 VA opinion, and the diagnosis of pathological gambling in the September 1998 VA examination report. As such, the Board finds that the evidence raises a reasonable doubt as to the cause of the veteran's gambling disorder. See 38 U.S.C.A. § 5107(b). Accordingly, in view of the evidence of record, the Board thus resolves all reasonable doubt in the veteran's favor, and finds that service connection for a gambling disorder is warranted. II. VCAA As of Novemer 2000, there has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims (Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). The law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA was implemented with the adoption of new regulations. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326a. In this case, in letters, dated in July 2002 and April 2004, the veteran was notified of the VCAA, and of his duties to obtain evidence. Furthermore, as the Board has fully granted the veteran's claim for service connection, the Board finds that a detailed discussion of the VCAA is unnecessary. Any potential failure of VA in fulfilling its duties to notify and assist the veteran is essentially harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Any error in the failure to provide notice involving the downstream elements of rating and effective date is harmless at this time, and can be corrected by the RO following the Board's decision. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). ORDER Service connection for a gambling disorder is granted. ____________________________________________ HOLLY E. MOEHLMANN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs