Citation Nr: 1311904 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 09-17 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, not otherwise specified (NOS), anxiety, and substance-induced mood disorder. ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1981 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In July 2011, the Board reopened the Veteran's claim of service connection for an acquired psychiatric disorder, and remanded it for further development. In August 2012, the Board referred this case for an expert medical opinion from the Veterans Health Administration (VHA). The Board received the VHA opinion in October 2012. The Veteran was provided a copy of this opinion with an opportunity to present further argument and/or evidence. FINDINGS OF FACT 1. The Veteran's anxiety disorder is related to service. 2. The Veteran's depressive disorder is aggravated by his service-connected lumbosacral strain-myositis. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include depressive disorder, NOS, and anxiety, have been met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist In light of the favorable disposition, a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied is not required. Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service) and § 1131 (peacetime service). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1131 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In addition, a disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310. Furthermore, the Court has held that the term "disability" as used in 38 U.S.C.A. §§ 1110, 1131 should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended in order to implement the holding in Allen regarding secondary service connection on the basis of the aggravation of a nonservice-connected disorder by a service-connected disability. See 71 Fed. Reg. 52744 (2006). However, as this change is not liberalizing the Board will consider this appeal under the former criteria because the Veteran filed this claim in 2005. If a Veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, including psychoses, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). With respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. 38 U.S.C.A. § 105; 38 C.F.R. § 3.1(m). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3). 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, it has been determined that the amendments do not preclude service connection under 38 C.F.R. § 3.310(a) of a substance abuse disability that is proximately due to or the result of a service-connected disease or injury. See VAOPGCPREC 7-99 (June 9, 1999); see also Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). In Allen v. Principi, it was indicated that claimants are only entitled to secondary service connection if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." It was further stated that such benefit 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, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) do not apply. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact (i.e. admissible); while the latter 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); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. Credible evidence is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, whether the evidence tends to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, it has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Analysis The Veteran seeks service connection for an acquired psychiatric condition, to include depressive disorder NOS, anxiety, and substance-induced mood disorder. He contends that his psychiatric conditions are related to service, or in the alternative, are secondary to his service-connected lumbosacral strain-myositis. The Veteran's service treatment records do not reflect treatment for a psychiatric disorder. The records show treatment for complaints of chronic low back pain. The Veteran was enrolled into an Alcohol/Drug Abuse Prevention and Control Program (ADAPCP) in April 1984 for cannabis use. Service records also include a report of a July 1984 separation physical examination. The examination report reflects that the Veteran reported symptoms of depression/excessive worry, nervous trouble, and frequent trouble sleeping upon discharge. The clinician who performed the examination noted the Veteran had a history of chronic lumbar pain for the past two years without a history of trauma-mechanical in nature and of recent onset [with] military action for elimination [with] sleep/worry and nervousness. The Veteran's psychiatric state was described as normal on the separation examination report. The Veteran underwent a VA psychiatric examination in April 1985 following discharge from service. He reported a history of nervousness and inability to sleep since basic training in 1981, which had continued since his discharge in September 1984. The VA examiner diagnosed atypical anxiety disorder with depressive features. The Veteran was afforded a VA examination in November 2008 in connection with his claim for service connection. He reported a history of cocaine and cannabis use since 1981. He also reported a history of hearing voices, seeing shadows, social withdrawal, depressed mood with crying spells, and an inability to work all of which began in 1984, on a daily basis. The VA examiner indicated that an Axis I diagnosis was deferred. In an addendum, the examiner explained that the Veteran did not undergo a requested toxicology study, and because previous labs were positive for substance abuse, a diagnosis could not be accurately established without a determination of his current substance use status. Additional VA medical records show the Veteran was hospitalized in September 2008 for episodes of depression and anxiety symptoms related to chronic pain. These records also show recent diagnoses of depressive disorder NOS, major depressive disorder, anxiety disorder, and substance-induced mood disorder. On VA psychiatric examination in September 2011, a VA examiner diagnosed the Veteran as having alcohol and cocaine-induced persisting sleep disorder and anxiety disorder; cocaine and cannabis dependence in early remission; and opioid dependence on Agonost therapy. The examiner opined that these disorders were less likely as not caused by or a result of the service-connected lumbosacral strain-myositis or the related chronic pain. The rationale was that there was no direct temporal relationship between the service-connected back disability, or its related chronic pain, and substance dependence. The examiner also stated, incorrectly, that there were no mental complaints or treatment in service. The examiner determined, however, that there was clear and convincing evidence that substance dependence was incurred during active military service. No further rationale was provided. In August 2012, the Board requested an expert medical opinion from a VHA specialist to determine the nature and etiology of the Veteran's acquired psychiatric disorder. In an opinion received in October 2012, the expert stated that the Veteran's chronic pain and functional disability arising from his service-connected lumbosacral strain-myositis have clearly played, and continue to play, significant roles in exacerbating his depressive disorder. His rationale was that the lumbosacral strain-myositis had caused chronic pain and functional disability that had, in the Veteran's record, been clearly identified as aggravating his depression. Since the back pain and functional disability were chronic and unremitting aspects of his service-connected condition, the aggravation of his depression arising from these issues was similarly chronic and unremitting. Therefore, it was more likely than not that his depression had been aggravated by his service-connected lumbosacral strain-myositis. The expert further stated that while some depressive symptoms were noted within one year of discharge from service (i.e., at the VA psychiatric examination in April 1985); it was unclear that these symptoms rose to the level of a diagnosis of depressive disorder, NOS at that time. Thus, it was impossible to conclude that it was more likely than not that the Veteran's depressive disorder, defined as such, had onset within one year of his discharge from service. With regard to the diagnosed anxiety, the expert noted that the Veteran's July 1984 separation examination documented depression/excessive worry, nervous trouble, and frequent trouble sleeping. He stated that these reported symptoms were consistent with an anxiety disorder with depressive features, and they were not elicited during his entry into service. The expert also explained that at the Veteran's April 1985 VA psychiatric examination, a diagnosis of atypical anxiety with depressive features was provided, and he had no reason to doubt the accuracy of this diagnosis at that time. Therefore, he opined that it was more likely than not that this condition both had its onset during service and was related to service. With regard to his substance-induced mood disorder, the expert stated it was impossible to conclude that it was more likely than not that the Veteran's psychiatric conditions caused his substance use. However, he did opine that it was likely that the Veteran's substance use had exacerbated his depression over time. Given the evidence of record, service connection for an acquired psychiatric disorder, to include depressive disorder and anxiety, is warranted. The October 2012 VHA opinion establishes that the depressive disorder is aggravated by the Veteran's service-connected lumbosacral strain-myositis. This opinion also establishes that the anxiety disorder had onset in service and is related to service. The Board finds the October 2012 expert medical opinion to be competent and highly persuasive. The specialist carefully reviewed the documented and self-reported medical history of the Veteran and provided a detailed opinion that was consistent with the evidence of record and comprehensive in nature. The specialist's opinion also included a clear and well-reasoned rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no competent medical opinion to the contrary. The November 2008 VA examiner deferred an Axis I diagnosis, and subsequently stated that a diagnosis could not be accurately established. The September 2011 VA examiner only addressed the etiology of the Veteran's substance abuse-related diagnoses. He did not distinguish the etiology of the anxiety disorder as a distinct, acquired psychiatric disorder separate from any substance abuse-related disorder. Accordingly, the claim of service connection for service connection for depressive disorder and anxiety is granted. 38 U.S.C.A. § 5107(b). Service connection for an acquired psychiatric disorder, manifested as substance-induced mood disorder, is not warranted. As discussed, service connection may be warranted under 38 C.F.R. § 3.310(a) for a substance abuse disability that is proximately due to or the result of a service-connected disease or injury. See VAOPGCPREC 7-99 (June 9, 1999); see also Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). In this case, the competent medical evidence adequately establishes that the Veteran's current substance-induced mood disorder is not caused by his service-connected lumbosacral strain-myositis or his (now service-connected) depressive disorder and anxiety disorder. The September 2011 VA examiner opined that the Veteran's substance dependence had onset in service, but his substance-induced mood disorders are not caused by or a result of his service-connected lumbosacral strain-myositis or the related chronic pain. The VHA specialist opined that impossible to conclude that it was more likely than not that the Veteran's psychiatric conditions caused his substance use. These opinions are competent and persuasive as they were provided by physicians who reviewed the record (and in the case of the examiner- evaluated the Veteran) and were supported with rationales. Payment of compensation for a disability that is a result of a Veteran's own alcohol or drug abuse is prohibited by law. 38 U.S.C.A. § 105(a) (West 2002); 38 C.F.R. §§3.1(m), 3.301 (d) (2012). Accordingly, service connection for an acquired psychiatric disorder defined as a substance-induced mood disorder is not warranted. ORDER Service connection for an acquired psychiatric disorder, to include depressive disorder, NOS and anxiety, is granted. ____________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs