Citation Nr: 1310030 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 06-26 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a heart disability. 3. Entitlement to service connection for neck disability, to include arm radiculopathy. 4. Entitlement to service connection for a psychiatric disability. 5. Entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to September 1975. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). This case was remanded by the Board in August 2009 for additional development. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence of record is against a finding that the Veteran's currently diagnosed hypertension is related to service. 2. The preponderance of the competent and credible evidence of record is against a finding that the Veteran's currently diagnosed heart disability is related to service. 3. The preponderance of the competent and credible evidence of record is against a finding that the Veteran's currently diagnosed neck disability is related to service. 4. There is no medical evidence of record that the Veteran has ever received a diagnosis of a psychiatric disability for which service connection can be granted. 5. The preponderance of the competent and credible evidence of record demonstrates that the Veteran is not permanently and totally disabled due to a nonservice-connected disability not the result his willful misconduct. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A heart disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. A neck disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 4. A psychiatric disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.304, 4.125 (2012). 5. The criteria for entitlement to nonservice-connected pension benefits have not been met. U.S.C.A. §§ 1110, 1131, 1521, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.301 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in March 2005, March 2006, and September 2009. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claims. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claims. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The determination as to whether the requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999). Alternatively, service connection may be awarded for a chronic condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. 38 C.F.R. § 3.303(b) (2012); Savage v. Gober, 10 Vet. App. 488 (1997). For certain chronic disabilities, including cardiovascular-renal disease and hypertension, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Hypertension and Heart Disability The Veteran's service medical records show that on examination in January 1974, prior to his entry into service, his blood pressure was 128/82, which was considered normal. In September 1975, his blood pressure was 162/88, which was indicative of borderline isolated systolic hypertension. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). However, in a different assessment conducted in September 1975, and on a January 1976 separation examination, the Veteran's blood pressure was 120/80, which was within the normal range. His service medical records are otherwise negative for any complaints or clinical findings of hypertension or other heart problems. After separation from service, an August 1980 VA hospital discharge report stated that the Veteran had been in excellent health until five days prior to admission. He reported experiencing dizziness and pain in the neck and upper chest, as well as other symptoms. On examination, the Veteran's blood pressure was 140/70, which was within the normal range. A chest x-ray was normal and no heart abnormalities were noted. The discharge diagnosis was presumed viral infection. A November 1982 VA hospital discharge examination report stated that the Veteran had been admitted for substance abuse. During hospitalization, a electrocardiogram was abnormal with Wolfe-Parkinson-White syndrome, but the Veteran's blood pressure was 120/70, which was within the normal range.. The medical evidence of record shows that a heart disability, including Wolfe-Parkinson-White syndrome, has been consistently diagnosed since November 1982. A June 1993 VA medical report stated that the Veteran had a history of hypertension for the previous three years and Wolfe-Parkinson-White syndrome dating back to 1982. The medical evidence of record shows that hypertension has been consistently diagnosed since June 1993. A November 2009 VA hypertension examination report stated that the Veteran's claims file had been reviewed. After a review of the Veteran's reported history, medical records, and a physical examination, the relevant diagnoses were hypertension, Wolfe-Parkinson-White syndrome, and single vessel right coronary artery. The examiner stated that the Veteran's hypertension was diagnosed after active service, not during active service, and it was not treated during active service. The examiner also stated that the Veteran's isolated September 1975 blood pressure reading was less likely than not related to his current hypertension. The rationale for the opinion was that, at the time, the Veteran was using morphine and his blood pressure reading was more likely than not related to his drug abuse problem. The examiner also opined that the Veteran's Wolfe-Parkinson-White syndrome was less likely than not related to his September 1975 blood pressure reading or any related incident. The Board finds that the preponderance of the competent and credible evidence of record is against a finding that the Veteran's currently diagnosed hypertension and heart disability are related to service. The Veteran's service medical records are negative for any complaints or diagnosis of hypertension or a heart disability. While the Veteran had a September 1975 in-service blood pressure reading which was indicative of borderline isolated systolic hypertension, thatreading was isolated and did not result in a diagnosis of hypertension. 38 C.F.R. § 4.104 , Diagnostic Code 7101 (2012). In addition, the Veteran's blood pressure was normal in August 1980 and November 1982, and the November 2009 VA hypertension examination report opined that the Veteran's in-service blood pressure reading was an isolated event related to his drug abuse, and was not related to his currently diagnosed hypertension. While the medical evidence of record shows that the Veteran has a current diagnosis of hypertension and a heart disability, there is no evidence of record that a heart disability was diagnosed prior to November 1982 or that hypertension was diagnosed prior to 1990, approximately seven and 15 years after separation from service. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulted in any chronic or persistent disability. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354 (1991). In addition, the preponderance of the medical evidence of record demonstrates that the Veteran's currently diagnosed hypertension and heart disability are not related to service. The only medical evidence of record which comments on the etiology of the Veteran's currently diagnosed hypertension and heart disability is the November 2009 VA hypertension examination report. That report found that the Veteran's hypertension and heart disability were not related to active service. Under certain circumstance, lay evidence can be competent and sufficient to establish the etiology or diagnosis of a condition. Davidson v. Shinseki, 581 F.3d 1313 (2009). However, lay etiological evidence is only competent to the extent that it relies on observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran claims that he was treated for hypertension and cardiovascular symptoms from 1975 to 1980, immediately following his period of active service. However, a search of medical records was negative for any treatment of the Veteran prior to 1980 and his blood pressure and heart were noted to be normal in August 1980. In addition, in August 1980 the Veteran actively reported that he had been in excellent health until five days prior to admission. That report directly contradicts the Veteran's claims of treatment for hypertension and a heart disability within the first five years following separation from service. The Board finds that the contemporaneous medical evidence has greater probative value than the Veteran's reported history. Curry v. Brown, 7 Vet. App. 59 (1994). In addition, a December 2009 VA mental disorders examination report opined that the Veteran's credibility and veracity were questionable for multiple reasons. Therefore, the Board finds that the preponderance of the evidence of record shows that the Veteran's statements regarding the history of his hypertension and heart disability are not credible. Accordingly, the Board finds that the preponderance of the competent and credible evidence of record is against a finding that the Veteran's currently diagnosed hypertension and heart disability are related to service. Therefore, the claims for service connection are denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neck Disability The Veteran's service medical records are negative for any complaints, diagnosis, or treatment for any neck or arm disability. After separation from service, an August 1980 VA hospital discharge report stated that the Veteran had been in excellent health until five days prior to admission. In an August 2004 VA outpatient medical report, the Veteran complained of chest, neck, and arm pain since that morning. He reported that the pain was in the neck, both sides of the chest, and down both arms, with associated numbness of both arms. After physical examination the impression was musculoskeletal pain versus cervical neck problem resulting in pain. In a November 2004 VA outpatient medical report, the Veteran complained of pain over his right arm and sometimes over his left arm. He stated that he had experienced those symptoms for approximately two months. A November 2004 VA x-ray examination report noted abnormalities of C1 and C2. A November 2004 private medical report stated that the Veteran was seen for a worker's compensation claim. The report stated that the Veteran had been injured in July 2003 when he fainted and fell while lifting tires, causing injury to his neck and back. The report stated that September 2003 private magnetic resonance imaging (MRI) and December 2003 private computed tomography examinations revealed multiple lumbar spine abnormalities, while a November 2004 private MRI examination revealed multiple cervical spine abnormalities. The Veteran's chief complaints were pain in the neck, mid back, low back, right arm, right shoulder, right knee, right leg, and head. He also reported experiencing numbness and weakness in the right arm. The examiner stated that the Veteran had developed neck pain with pain radiating to the right arm. The medical evidence of record shows that a neck disability with associated right arm radiculopathy has been consistently diagnosed since November 2004. A February 2005 private neurology report stated that the Veteran had a history of a work accident one and a half years before while lifting to load a truck. He complained of pain in his low back with numbness, tingling, and weakness in his right leg. A March 2005 VA MRI gave an impression of degenerative posterior disc osteophytes, most prominent at the C5-6 level, with mild secondary canal stenosis and flattening of cord. An April 2005 VA medical report stated that electromyography and nerve conduction velocity testing demonstrated findings strongly suggestive of acute, moderately severe, C6/7 radiculopathy. A May 2005 VA neurosurgery consultation report stated that the Veteran had a year or so history of neck pain with radiation into the right arm. In a November 2009 VA neck examination report, the Veteran complained of pain in his neck which radiated to his right arm since service. After a review of the Veteran's reported history, medical records, and a physical examination, the diagnosis was cervical myalgia, without evidence of a radiculopathy in either extremity. The examiner opined that the Veteran's current neck disability was not related to any incident that occurred in service. The rationale for the opinion was, in part, that there was no evidence of an in-service injury. The Board finds that the preponderance of the competent and credible evidence of record is against a finding that the Veteran's currently diagnosed neck disability is related to service. The Veteran's service medical records are negative for any complaints or diagnosis of a neck disability. While the medical evidence of record shows that the Veteran has a current diagnosis of a neck disability, there is no evidence of record that any neck disability was diagnosed prior to July 2003, approximately 28 years after separation from service. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulted in any chronic or persistent disability. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354 (1991). In addition, the preponderance of the medical evidence of record demonstrates that the Veteran's currently diagnosed neck disability is not related to service. The only medical evidence of record which comments on the etiology of the Veteran's currently diagnosed neck disability is the November 2009 VA neck examination report. That report stated that the Veteran's neck disability was not related to any incident in active service. Under certain circumstance, lay evidence can be competent and sufficient to establish the etiology or diagnosis of a condition. Davidson v. Shinseki, 581 F.3d 1313 (2009). However, lay etiological evidence is only competent to the extent that it relies on observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran claims that he injured his neck in a motor vehicle accident during active service. However, no evidence of any motor vehicle accident is found in the Veteran's service medical records. In addition, in August 1980 the Veteran actively reported that he had been in excellent health until five days prior to admission. Most significantly, the evidence of record clearly demonstrates that the Veteran's neck and right arm complaints began following a post-service workplace injury in July 2003. Those reports directly contradict the Veteran's claims that his neck disability began during service. The Board finds that the contemporaneous medical evidence has greater probative value than the Veteran's reported history. Curry v. Brown, 7 Vet. App. 59 (1994). In addition, a December 2009 VA mental disorders examination report opined that the Veteran's credibility and veracity were questionable for multiple reasons. Therefore, the Board finds that the preponderance of the evidence of record shows that the Veteran's statements regarding the history of his neck disability, and regarding the incurrence of any neck injury during a motor vehicle accident during service, are not credible. Accordingly, the Board finds that the preponderance of the competent and credible evidence of record is against a finding that the Veteran's currently diagnosed neck disability is related to service. Therefore, the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Psychiatric Disability Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). A diagnosis of a mental disorder, including PTSD, must conform to the criteria of American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125 (2012). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f)(1) (2012). If the Veteran did not engage in combat with the enemy or if the claimed stressors are not related to combat, then the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996); Fossie v. West, 12 Vet. App. 1 (1998). However, if a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Fear of hostile military or terrorist activity means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (2012). The Veteran's service treatment records include multiple reports of treatment for, and diagnoses of, opiate abuse. The Veteran was subsequently discharged due to unfitness and unsuitability. After separation from service, an August 1980 VA hospital discharge report stated that the Veteran had been in excellent health until five days prior to admission. A November 1982 VA hospital discharge examination report stated that the Veteran had undergone previous drug treatment in 1975. He presently reported daily intravenous use of T's and Blues, and weekly intravenous use of amphetamines. The Axis I diagnosis was substance abuse: pentazosine, amphetamines, and heroin. The medical evidence of record shows that a psychiatric disability has been consistently diagnosed since November 1982, including depressive disorder, cocaine dependence, and anxiety disorder. A November 2009 VA psychology examination report stated that the Veteran's claims file had been reviewed. After a review of the Veteran's reported history, medical records, and a mental status examination, the Axis I diagnoses were substance-induced mood disorder with depressive features, alcohol abuse, cannabis abuse, cocaine dependence, and opioid abuse. The examiner opined that the Veteran had a long history of alcohol and drug abuse which led to significant impairment in social and occupational functioning. It was further opined that the Veteran's alcohol and drug abuse was the central and primary factor in his occupational and social problems. The examiner opined that the Veteran's problems with depression and anxiety were more likely than not attributable to his long-term alcohol and drug abuse. The examiner also stated that the Veteran's credibility and veracity were questionable due to various discrepancies and inconsistencies in his records and report, and his behavior during the interview. In particular, the examiner noted that the Veteran did not mention his claimed in-service motor vehicle accident or witnessing a friend being fatally stabbed, nor was there any evidence of any such incidents having a relationship to his ongoing psychiatric symptoms. The examiner also stated that the Veteran did not mention a history of nightmares, and had a history of substance abuse which pre-dated active service. The examiner further noted inconsistencies in the Veteran's reports of his occupational functioning. The Board finds that there is no medical evidence of record that the Veteran has ever received a diagnosis of a psychiatric disability for which service connection can be granted. Initially, the Board notes that the Veteran claims to have a current diagnosis of PTSD which is related to various in-service stressors. However, the medical evidence of record does not show that the Veteran has ever received a diagnosis of PTSD. There are numerous psychiatric reports of record, and these reports unanimously failed to provide a diagnosis of PTSD. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The Veteran's statements alone are not sufficient to prove that he has a current diagnosis of PTSD. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. As he is not a physician, the Veteran is not competent to make a determination that any psychiatric disability he currently experiences is PTSD. Davidson v. Shinseki, 581 F.3d 1313 (2009); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's claim of entitlement to service connection for a psychiatric disability encompasses all of his psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, the medical evidence of record shows that the Veteran has a very long history of substance abuse and the November 2009 VA psychology examination report specifically opined that the Veteran's current depression and anxiety were most likely caused by his long-term alcohol and drug abuse. There is no medical evidence of record which contradicts that medical opinion and the Board finds that opinion persuasive and probative. Accordingly, the preponderance of the competent evidence of record demonstrates that all of the Veteran's currently diagnosed psychiatric disabilities are related to the abuse of alcohol and drugs. As a matter of law, as the Veteran's claim was filed in February 2005, service connection is not warranted for disabilities that result from the abuse of alcohol, drugs, or tobacco products. 38 C.F.R. §§ 3.300, 3.301 (2012). Thereofre, service connection for a psychiatric disability is not warranted because it is shown by the preponderance of the evidence to be the result of abuse of drugs. Accordingly, the Board finds that the preponderance of the competent and credible evidence of record does not show that the Veteran has ever received a diagnosis of a psychiatric disability for which service connection can be granted. Therefore, the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nonservice-connected Pension Improved nonservice-connected pension is a benefit payable by VA to a Veteran of a period of war who is permanently and totally disabled from nonservice-connected disability that is not the result of the Veteran's willful misconduct. 38 U.S.C.A. § 1521(a) (West 2002 & Supp. 2012). Alcohol abuse and drug abuse, unless they are a secondary result of an organic disease or disability, are considered to be willful misconduct. 38 C.F.R. § 3.301(c)(2)-(3) (2012). 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)(2)-(3) (2012). A November 2009 VA psychology examination report stated that the Veteran's claims file had been reviewed. After a review of the Veteran's reported history, medical records, and a mental status examination, the Axis I diagnoses were substance-induced mood disorder with depressive features, alcohol abuse, cannabis abuse, cocaine dependence, and opioid abuse. The examiner opined that the Veteran had a long history of alcohol and drug abuse which led to significant impairment in social and occupational functioning. It was further opined that the Veteran's alcohol and drug abuse was the central and primary factor in his occupational and social problems. The examiner opined that the Veteran's problems with depression and anxiety were more likely than not attributable to his long-term alcohol and drug abuse. The examiner noted the Veteran's reports, and the evidence of record, that he had stopped working due to a back injury or due to a nervous condition. However, the examiner opined that the Veteran's history of multiple lost jobs was more likely than not attributable to his substance abuse behavior. The examiner opined that the Veteran's overall level of disability, excluding the effects of substance abuse and other disabilities which were considered to be due to willful misconduct, did not render him permanently unable to obtain or maintain substantially gainful employment. The examiner finally concluded that the Veteran's main problem over the course of his life had been alcohol and drug abuse, and that this problem had led to his impairment in social and occupational functioning, as well as depression and anxiety. The preponderance of the competent and credible evidence of record demonstrates that the Veteran is not permanently and totally disabled due to a nonservice-connected disability not the result his willful misconduct. The Board notes that the evidence of record shows that the Veteran is totally disabled due to a nonservice-connected disability. However, the preponderance of the evidence of record also shows that disability was the result of the Veteran's willful misconduct. Specifically, the preponderance of the competent and credible evidence of record demonstrates that the Veteran is disabled as a result of his various psychiatric disabilities and substance abuse, but those disabilities are the direct result of his progressive and frequent use of drugs to the point of addiction. Therefore, his psychiatric disabilities are considered to be the result of willful misconduct and service connection for disabilities due to the abuse of alcohol or drugs. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.301(c)(2)-(3) (2012). There is no competent and credible evidence of record which states that the Veteran is permanently and totally disabled due to a nonservice-connected disability which is not the result of his abuse of alcohol and drugs or of any wilfull miscondut. The only medical evidence of record which provides an opinion on that matter is the November 2009 VA psychology examination report. That report specifically stated that the Veteran's overall level of disability, excluding the effects of substance abuse and other disabilities which were considered to be due to willful misconduct, did not render him permanently unable to obtain or maintain substantially gainful employment. The Board further notes that, in the February 2009 hearing before the Board, the Veteran claimed that the disabilities which prevented him from working were his psychiatric disability, back disability, and diabetes mellitus. However, the November 2009 VA psychology examination report specifically noted multiple inconsistencies in the Veteran's reports of his occupational functioning and found the Veteran's credibility and veracity were questionable. Therefore, the Board finds that the preponderance of the evidence of record shows that the Veteran's statements are not credible regarding whether he is totally disabled due to a nonservice-connected disability other than a psychiatric disability which is secondary to alcohol and drug abuse. The Board finds that, the preponderance of the evidence of record shows that the Veteran is not permanently and totally disabled from nonservice-connected disability which is not the result of his willful misconduct. 38 U.S.C.A. § 1521(a) (West 2002 & Supp. 2012). Accordingly, the Board finds that the Veteran does not meet the requirements for improved nonservice-connected pension. Therefore, the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for hypertension is denied. Service connection for a heart disability is denied. Service connection for a neck disability, to include arm radiculopathy, is denied. Service connection for a psychiatric disability is denied. Nonservice-connected pension benefits are denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs