Citation Nr: 1328235 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 06-16 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), including an adjustment disorder, mood disorder, and substance abuse disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1978 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied service connection for PTSD. In April 2013, the Board broadened the scope of the claim, in accordance with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), to include the alternative psychiatric diagnosis of record, denied service connection for PTSD, and remanded the issue of service connection for an acquired psychiatric disorder other than PTSD for further development. This case was also remanded for additional development in August 2007, August 2008, and June 2011. In April 2007, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). This transcript has been associated with the file. FINDINGS OF FACT 1. Disability benefits may not be awarded for substance abuse disorders as a matter of law unless substance abuse is secondary to a service-connected disability, and the Veteran's substance abuse disorder is not proximately caused or aggravated by any disorder incurred in or aggravated by service. 2. The Veteran's mood disorder and/or adjustment disorder did not begin during active service and neither his mood disorder nor adjustment disorder is otherwise causally linked to military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder other than PTSD, including an adjustment disorder, mood disorder, and substance abuse disorder, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notification and Development Assistance Duties When an application for benefits is received, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). A. Duty to Notify under the VCAA Before the initial VA decision on a claim for benefits, the Veteran must be notified of the information and evidence (1) needed to substantiate the claim, (2) that VA will attempt to obtain, and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); 38 C.F.R. § 3.159(b); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). These notice requirements apply to the downstream elements of the rating and effective date assigned if the disability is service connected. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The Veteran was provided with this information in letters dated March 2007 and April 2013 and his claim was readjudicated in a June 2013 Statement of the Case (SOC). See Prickett v. Nicholson, 20 Vet App. 370, 376 (2006) (fully compliant VCAA notification followed by readjudication is sufficient to cure a notice timing defect). B. Duty to Assist under the VCAA VA also has a duty to assist a claimant in obtaining the evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty has been fulfilled as all available relevant records identified by the Veteran have been obtained, including his service treatment records, VA treatment records, and private treatment records, and adequate VA examination reports dated February 2006 and July 2011 are of record. Multiple attempts have been made to obtain potentially relevant records from the Social Security Administration (SSA), but all efforts have proved unsuccessful. In November 2012, the Veteran was notified that VA was unable to obtain his SSA records and was asked to submit any SSA records in his possession, and a formal finding of unavailability was issued and associated with the record. The Veteran has not identified any other records that VA has failed to obtain. The VA examiners described the Veteran's disability in sufficient detail to allow for a fully informed evaluation upon adjudication. Stefl v. Nicholson, 21 Vet. App. 123, 123 (2007). The Veteran's representative raised the argument that the examiners did not adequately consider the Veteran's diagnoses other than PTSD as a result of the Board's characterization of the claim on appeal, but review of the VA examination reports demonstrates consideration of the existence of other psychiatric disorders, as well as opinions on any relationship between any diagnosable psychiatric disorders other than PTSD and service. The Veteran's representative also argues that the DSM-IV diagnosis provided in the examination reports is incomplete, but as all diagnoses of record, including those mentioned in the examiners' explanation of the reasoning for the examiners' conclusions, are conceded by the Board in this decision, no prejudice can result from any failure to provide the diagnosis in accordance with the form required by 38 C.F.R. § 4.125(a) in a service connection claim for psychiatric disorders other than PTSD. Further, the examiners fully considered the Veteran's prior medical history and lay statements, and the examiners provided reasoned medical explanations connecting the facts relied upon to the conclusions provided. See El-Amin v. Shinseki, 26 Vet. App. 136, 139 (2013); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Although the Veteran has received additional mental health treatment since the most recent July 2011 VA examination, he has not been diagnosed with a mental disorder that was not already of record at the time of this examination and there has been no other material change to his medical history since the July 2011 VA examination. C. Substantial Compliance with Remand Orders VA has a duty to ensure compliance with the terms of remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, it is substantial compliance, not perfect compliance, which is required. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). This case was remanded in August 2007, August 2008, June 2011, and August 2012. The Veteran's private and VA records have been obtained and he has undergone numerous VA examinations. In November 2012, a memorandum of unavailability was issued with respect to his records from the Social Security Administration (SSA). In April 2013, the Board directed the AMC to obtain the Veteran's recent VA treatment records, to send proper notice on the remaining issue of service connection for an acquired psychiatric disorder other than PTSD, and to seek any relevant information and evidence in support of that claim. A fully compliant letter was sent to the Veteran in April 2013 and no response was received. The Veteran's recent VA treatment records have been obtained and associated with his electronic records file. The AMC reviewed the record, determined no further development was necessary, and readjudicated the claim in a June 2013 supplemental statement of the case (SSOC). Therefore, there has been substantial compliance with the actions specified in the Board's remand orders and the matter has been properly returned to the Board for appellate consideration. D. Duties of a Hearing Officer The Veteran presented testimony in support of his claim at an April 2007 hearing. The hearing transcript of record documents the efforts made by the undersigned VLJ to explain the issue on appeal and to identify and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010); 38 C.F.R. § 3.103(c)(2). The Veteran was asked for information and clarification intended to elicit testimony in support of the elements necessary to substantiate his claim and the Veteran and his representative demonstrated actual knowledge of the elements of the claim and the information and evidence needed to substantiate those elements. The Veteran gave testimony on his mental health treatment and was provided with specific suggestions of evidence of treatment that would assist VA in deciding his claim. E. Prejudicial Error Analysis There is no indication that any prejudice to the Veteran has resulted from the timing or substance of the notice or assistance with evidentiary development provided in this case. See Shinseki v. Sanders, 556 U.S. 396, 410 (2009); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 107 (2010) (prejudice is assessed on the basis of the facts and circumstances presented in the entire record). In the absence of demonstrated prejudice, remand is unnecessary, and there is no other indication that additional development effort would serve any useful purpose. See Marcinak v. Brown, 10 Vet. App. 198, 201 (1997) (remand is unnecessary in the absence of demonstrated prejudice); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (there is no basis for a remand which would only result in unnecessary additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board will proceed with the adjudication of the issues on the merits. II. Evidentiary Standards As factfinder, it is the Board's responsibility to determine the credibility and weight of the evidence. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). The Board will determine whether the disability claimed is the type for which lay evidence is competent and evaluate the credibility of that evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan, 451 F.3d at 1333-437. If lay evidence is competent and credible, its probative value will be weighed against the other evidence of record. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). When all the evidence is assembled, the Board will determine whether the evidence either supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or a preponderance of the evidence is against a claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons or bases for its findings and conclusions on all material issues of fact and law, there is no need to discuss each piece of evidence submitted by the Veteran, or on his behalf, in exhaustive detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (explaining that the Board must review the entire record, but need not explicitly discuss every individual piece of evidence in the record). Accordingly, the analysis below will focus on an evaluation of the material evidence of record and whether this evidence substantiates the claims on appeal. Therefore, the Veteran should not assume that the Board has overlooked evidence that is not explicitly mentioned in the following discussion. See generally Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). III. Service Connection Claim In April 2013, the Board denied the Veteran's claim for service connection for PTSD but determined that the scope of the claim on appeal included consideration of whether service connection was warranted for any other diagnosed acquired psychiatric disorder. A. Governing Law and Regulations Service connection will be granted where the facts establish disability resulting from a particular disease or injury incurred coincident with service or disability resulting from the aggravation of a preexisting disease or injury in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during service. Brock v. Brown, 10 Vet. App. 155, 160 (1997); 38 C.F.R. § 3.303(d). Generally, the evidence 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. Morris v. Shinseki, 678 F.3d 1346, 1353 (Fed. Cir. 2012) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Applicable law and regulation provide that compensation shall not be paid if disability was the result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301(c). Effective for claims filed after October 31, 1990, Section 8052 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, prohibits payment of compensation for a disability that is a result of a Veteran's own alcohol or drug abuse and amended 38 U.S.C.A § 105(a) to provide that an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the Veteran's own willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(n), 3.301. The Federal Circuit has held that 38 U.S.C.A. §§ 105 and 1110 preclude compensation for primary alcohol abuse disabilities and secondary disabilities that result from primary alcohol abuse. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). The decision explains that "primary alcohol abuse" means an alcohol abuse disability arising during service from voluntary and willful drinking to excess. Id. However, the Federal Circuit has held that service connection is warranted when drug or alcohol abuse results secondarily from a service-connected disability, but compensation should only result "where there is clear medical evidence establishing that the drug or alcohol abuse disability is indeed caused by the Veteran's primary service-connected disability." Id. at 1371, 1381. Secondary service connection is available when a claimant's disability is either (1) due to or the result of a service-connected disability, or (2) aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. B. Review of the Evidence The Veteran's service treatment records are negative for any complaints, treatment of diagnoses of psychiatric problems. An August 2002 VA treatment record shows that the Veteran reported symptoms of insomnia and depression. A VA homeless program social worker note from September 2004 shows that the Veteran reported symptoms of depression, anxiety, tension, and problems with understanding, concentrating, and remembering. He also reported thoughts of suicide related to difficulties with his medical problems. He also reported outside mental health treatment with a private provider. He had substance abuse counseling with a VA addiction therapist later that month. September 2004 private mental health treatment records show complaints of worsening symptoms of depression related to his medical conditions, sleeping problems, parenting issues and concerns, and psychosocial occupational, health care, social environment, and economic problems. He reported a two year history of daily depression. He reported a past diagnosis of adjustment disorder with disturbance of conduct and an instance of prior treatment at that facility by court order reportedly resulting from a domestic abuse conviction. No abnormal findings are reported on the mental status examination. The DSM-IV diagnosis provided is major depressive disorder (MDD), mild. In October 2004, he also reported a two year history of depression. No change in his condition was found; he remained depressed, anergic, and anhedonic, with sleeping problems and frequent worrying. In a later treatment note from October 2004, the Veteran reported stress related to his medical problems. There was no change in the diagnosis of MDD. In February 2006, the Veteran was provided with a VA examination. At that time, he reported no current mental health treatment. He complained mostly of stress, particularly frustration with the limitations imposed by his back problems. He described himself as "semi-depressed," but reported suicidal ideation without intent. He also reported dissatisfaction with his treatment in civilian life following his accomplishments in the military. Mental status examination showed depressed mood with affect appropriate to content. Thought processes and associations were logical and tight without loosening of associations or confusion and memory was grossly intact. Insight and judgment were somewhat limited. The Veteran reported occasional suicidal ideation but denied intent. The examiner determined that a mild adjustment disorder secondary to the Veteran's back problems and drug abuse was the only potential diagnosable psychiatric disorder shown by the evidence. The examiner also found that no evidence of impairment in thought process or communication was noted. A September 2009 initial mental health evaluation note shows that the Veteran was referred by his VA physician shows that he reported past private treatment for depression in 2005. He appeared anxious with poor eye contact, and cognitive behavior therapy was recommended to change cognitions as well as counseling on anxiety reduction techniques and coping skills. Upon further evaluation for possible PTSD in October 2009, he was diagnosed with a substance induced mood disorder, cocaine dependence, and cannabis and alcohol abuse. He underwent a VA mental health psychosocial assessment in October 2009, and reported problems with depression. He reported problems with polysubstance abuse and nightmares and sought assistance with unwanted thoughts and drug abuse. In November 2009, the Veteran began a substance use disorder recovery program with VA. He identified depression as a major trigger for substance. A VA mental health integrated summary dated November 2009 shows that he reported problems of stress and anxiety and had diagnoses of cocaine dependence, alcohol dependence, cannabis dependence, and substance induced mood disorder. His VA records show ongoing treatment for substance abuse and depression from this time forward. He was evaluated at a VA mental health clinic diagnostic assessment in December 2009 and reported depressive symptoms of change in sleep, decreased energy, and anhendonia. The notes show that the Veteran had a lifetime history of substance abuse, clashes with authority, and poor coping. He was diagnosed with substance abuse mood disorder, cocaine dependence, and cannabis and alcohol abuse. He was initially referred for a second evaluation but was told to request a compensation and pension examination for that evaluation after reporting that he had no interest in treatment. In June 2010, the Veteran underwent a VA substance abuse evaluation and a mental health history and physical examination. The diagnostic impression was alcohol and cocaine dependence. A July 2010 VA mental health integrated summary shows diagnoses of alcohol dependence, cocaine dependence, nicotine dependence, and substance abuse mood disorder. The Veteran sought private mental health treatment in September 2010. He reported past mental health treatment due to drug use and current symptoms of insomnia, worsening depression, anxiety, decreased energy, isolation, and anger control issues. He said his mood was worsened by the loss of family members and constant visions that caused nightmares. The notes show that the Veteran gave vague answers and stated that he sometimes thought someone was whispering his name but did not want to discuss the issue of visions or hallucinations further. He was diagnosed with moderate recurrent major depressive disorder and cocaine dependence in early full remission. A diagnostic note was also made to rule out the diagnosis of chronic PTSD. His records show that he continued to report these symptoms and was given the same diagnosis during private mental health treatment appointments with this provider through August 2011. The Veteran was provided with a second VA psychiatric examination in July 2011. He stated that he had had trouble coping and that his wife told him that he was having nightmares and talking in his sleep. He also reported considerable social isolation and alcohol and crack cocaine use. The examiner did not find evidence of PTSD or another psychiatric disorder other than PTSD during the examination that was related to the Veteran's military experiences. The examiner also did not find any evidence of mental health issues while the Veteran was in the military. Treatment notes from October 2011 show that he reported daily anger problems and depression, anxiety, frequent visions, and a history of substance abuse. The diagnosis provided is major depressive disorder, moderate, with recurrent episodes, and rule out posttraumatic stress disorder. He subsequently terminated private mental health treatment with that provider. An October 2011 VA diagnostic assessment shows a changed diagnosis of an adjustment disorder (NOS), alcohol dependence and cocaine dependence in remission, rule out mood disorder due to a general medical condition (GMC) or substance-induced mood disorder (SIMD); and rule out borderline intellectual functioning. The notes show that the Veteran complained of irritability, anger, and poor sleep quality. He reported waking for up to three hours per night, possibly due to pain, and his pain level was his principal complaint during the interview. Symptoms of irritability, low energy, anger, and poor memory are recorded. He also reported regular substance use, included alcohol and cocaine, beginning 25 years ago. The treatment notes also show a history of clashes with authority and poor coping. Reported symptoms were, overall, vague, possibility complicated by poor memory. An October 20, 2011 addendum shows that a significant history for substance abuse was noted. This addendum also shows that the Veteran alluded to a head injury while in the military that "may also be contributing." The note explained that the Veteran tended to be vague about his symptoms. A February 2013 VA mental health treatment record shows that the Veteran reported depressive symptoms and asked for a prescription for an antidepressant due to increasing levels of stress. The treatment record shows a previous mental health history of adjustment disorder due to a substance-induced mood disorder. The psychiatrist found that the increasing stress was mostly secondary to pain and rejection of VA disability compensation, with a possible contributing factor of his poorly controlled diabetes. C. Analysis Review of the evidence of record shows that the Veteran has been diagnosed with an adjustment disorder; mood disorder, including major depressive disorder, and various substance abuse disorders. In the absence of evidence to the contrary, medical professionals are presumed to be competent to render the diagnoses they render. Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009); Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Therefore, the Board concedes that these psychiatric diagnoses have been established. The opinions provided by the VA examiners finding no psychiatric diagnosis other than PTSD related to the Veteran's military service and the Veteran's VA treatment records relating his adjustment disorder and mood disorder to his substance abuse and/or general medical condition are more probative on the issue of causation than any lay statements made by the Veteran attributing his psychiatric symptoms to service, such as his reported dissatisfaction with civilian life following discharge from the military and identification of depression as a trigger for substance abuse. The Veteran does not have the requisite competence to render an opinion on etiology. The medical evidence repeatedly relates his mood disorder to his substance abuse disorder and his adjustment disorder to his general medical conditions and/or substance abuse disorder, none of which have been related to his military service. The Veteran does not have any service-connected disabilities. Service connection for a back disability was previously denied by the RO; and a subsequent petition to reopen was denied. A causal determination made by a trained psychiatrist is a reliable basis for making a determination on the etiology of the Veteran's disorders as it is based on expert knowledge of the signs and symptoms of the particular character of the Veteran's disorders as well as objective analysis of the Veteran's reported mental health history, as opposed to the subjective memory of the Veteran alone. The suggestion that the Veteran's reported head trauma in service may be a contributing factor does not weigh equally against the other medical evidence of record as this statement is inconsistent with the Veteran's other statements and the other evidence of record, including his service records, and does not constitute credible evidence of head trauma in service. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credible testimony is that which is plausible or capable of being believed; in determining whether written statements are credible, the Board may properly consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran). First, the Veteran's lay assertion is equivocal. Second, the Veteran's service treatment records do not reflect any evidence of head trauma. In fact, the Veteran specifically denied having experienced head trauma during an episode of treatment. Consequently, any medical findings premised on the Veteran's equivocal and inconsistent statements are not probative. Swann v. Brown, 5 Vet. App. 229, 233 (1993) (medical opinions premised upon an unsubstantiated account are of no probative value, and do not serve to verify the occurrences described). Therefore, the evidence of record does not demonstrate a relationship, or nexus, between the Veteran's mood disorder and/or adjustment disorder and his military service. The Veteran's substance abuse disorder may not be related to service as it does not clearly result from any service-connected disability. Substance abuse is not otherwise a disability for which compensation benefits may be awarded. As the Veteran's substance disorder may not be directly related to service and is not shown to be related to any other disorder related to service, the Veteran's mood disorder is secondary to his substance abuse disorder, and the Veteran's adjustment disorder is secondary to his general medical condition and/or substance abuse disorder, the claim for service connection for an acquired psychiatric disorder other than PTSD must be denied. As the preponderance of the evidence is against the claim, there is no doubt to weigh in the Veteran's favor and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 53-56. ORDER Entitlement to service connection for an acquired psychiatric disorder other than PTSD, including a mood disorder and substance abuse disorder, is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs