Citation Nr: 1316672 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 94-14 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney at Law ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to June 1986 with subsequent service in the United States Army Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 1993 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, denied entitlement to service connection for a psychiatric disorder, characterized as a personality disorder. This case was previously before the Board on several occasions; it was remanded for additional development in February 1996, November 2000, May 2006, April 2008, June 2010, and November 2012. The case has now returned to the Board for further appellate action. FINDINGS OF FACT 1. An acquired psychiatric disorder, currently diagnosed as schizophrenia, had its onset during active duty service. 2. The Veteran's alcohol and cocaine dependency are not manifestations of schizophrenia. CONCLUSIONS OF LAW 1. Service connection for an acquired psychiatric disorder, currently diagnosed as schizophrenia, is warranted. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Service connection for alcohol and cocaine dependence is precluded by law. 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.301(a), (d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that service connection is warranted for an acquired psychiatric disorder as it was incurred during active duty. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). 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). The record establishes the presence of a chronic psychiatric disability. Upon VA examination in October 2009, the Veteran was diagnosed with schizophrenia, major depressive disorder, and alcohol and cocaine dependency. The diagnosis of schizophrenia was verified by a VA psychiatric expert in June 2012 and the Veteran has obtained treatment for schizophrenia at various private facilities and at the Dublin VA Medical Center (VAMC) throughout the claims period. The record therefore demonstrates a current chronic psychiatric disability diagnosed as schizophrenia. The record also documents complaints of psychiatric problems during active duty service. Available service treatment records show that the Veteran complained of non-cardiac chest pains and nerves in March 1983 and May 1984. The May 1984 examiner recommended treatment for a nervous condition. In August 1985, the Veteran reported having nervous problems throughout his life, as well as continuing chest pains. The diagnosis was anxiety and tension aggravated by the Veteran's present work situation. Four months later, the Veteran was admitted to a substance abuse counseling program for treatment of alcohol dependency. A separation examination from June 1986 is not of record, but a report of medical history accompanying a July 1987 reserves examination shows that the Veteran complained of nervous trouble. The record therefore establishes complaints of chest pain, nervousness, and anxiety during active duty service (and soon after separation) and the second element of service connection-an in-service injury or illness-is present. With respect to whether the record demonstrates a link between the Veteran's schizophrenia and active duty service, there is evidence weighing both in favor and against the claim. In support of his claim, the Veteran has reported experiencing psychiatric symptoms since his period of active duty service. The Board finds these statements credible in light of the VA and private treatment records that document a similar history provided for treatment purposes and symptoms dating from August 1992, when the Veteran sought treatment for anxiety and depression at a private facility. Also in favor of the Veteran's claim is the medical opinion of the June 2012 VA expert in psychiatry. The VA expert concluded that the Veteran's complaints of nerves, chest pain, and anxiety-like symptoms during service were at least as likely as not precursor symptoms of the later-diagnosed schizophrenia. While the in-service complaints were not sufficient to justify a diagnosis of schizophrenia during service, it was reasonable to conclude that they were part of the disability's prodrome phase. In contrast, the October 2009 VA examiner found that there was no evidence of schizophrenia during service. That examiner stated that while it was within the realm of possibility that the Veteran's in-service complaints were indicative of prodrome schizophrenia, without additional records demonstrating the evolution of the disability, it would require speculation to link the two. The June 2012 VA expert also noted that the Veteran's substance abuse was one of several causes of his schizophrenia. This finding also weighs against the claim for service connection for the psychiatric disorder. The record therefore contains medical evidence both for and against the claim for service connection. The Board finds that the evidence is at least in equipoise regarding service connection and a link between the Veteran's in-service symptoms and subsequent schizophrenia and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All the elements necessary for establishing service connection are therefore met and the Veteran's claim for service connection for an acquired psychiatric disorder, diagnosed as schizophrenia, is granted. As a final matter, the Board notes that the Veteran has also been diagnosed with alcohol and cocaine dependency throughout the claims period. VA's General Counsel has concluded that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs (a substance abuse disability) is precluded for purposes of all VA benefits for claims filed after October 31, 1990. VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (1999); see also VAOPGCPREC 2-98, 63 Fed. Reg. 31,263 (1998). VA General Counsel precedent opinions are binding on the Board. Brooks v. Brown, 5 Vet. App. 484 (1993). The Veteran filed his claim for service connection for an acquired psychiatric disorder after October 31, 1990. Therefore, service connection for alcohol and cocaine dependency as directly related to active duty service must be denied as a matter of law. Service connection is possible for a substance abuse disorder acquired as secondary to, or as symptoms of, a service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). However, in this case, the record clearly demonstrates that the Veteran began to experience problems with substance abuse prior to the development of schizophrenia; in fact, the June 2012 VA examiner opined that the Veteran's drug abuse was one of several causes for the disability. Thus, service connection for alcohol and cocaine dependence is not possible. The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim. With respect to the Veteran's substance dependency, as discussed above, there is no legal basis upon which the benefits may be awarded and this aspect of the Veteran's claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The provisions of VCAA have no effect on an appeal where the law and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). ORDER Entitlement to service connection for an acquired psychiatric disorder, currently diagnosed as schizophrenia, is granted. Entitlement to service connection for alcohol and cocaine dependency is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs