Citation Nr: 1333693	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  08-26 270	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to service connection for alcoholism, to include as secondary to service-connected panic disorder with agoraphobia and posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney


ATTORNEY FOR THE BOARD

M.H. Stubbs, Counsel



INTRODUCTION

The Veteran served on active duty from November 2001 to November 2005.

These matters come before the Board of Veterans' Appeals  (Board) on appeal from a February 2008 rating decision, which denied a claim for service connection for alcoholism.

The RO also granted service connection for PTSD and combined this grant with the Veteran's current evaluation of panic disorder with agoraphobia in a September 2010 rating decision.

In October 2010, the Board denied the Veteran's claim for service connection for alcoholism, to include as secondary to service-connected panic disorder without agoraphobia.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In August 2011, the Court issued an order granting a joint motion to remand (JMR) the appeal to the Board because the Board's decision did not include analysis based on the Veteran's recent grant of service connection for PTSD.  The appeal has been returned to the Board for action consistent with the JMR and the Court order.

This appeal was previously before the Board in June 2012 and March 2013.  The Board remanded the claim so that the Veteran could be scheduled for a VA examination and addendum opinion.  The case has been returned to the Board for further appellate consideration.


FINDING OF FACT

The Veteran's alcoholism is not attributable to military service, and the most probative medical evidence of record does not reflect that alcoholism is etiologically related to a service-connected disability.


CONCLUSION OF LAW

Service connection for alcoholism is not warranted.  38 U.S.C.A. §§ 105(a), 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(m) and (n) , 3.102, 3.159, 3.301, 3.303, 3.304, 3.310 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326. 

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a)  (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 

A December 2007 VCAA letter fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.  The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims.  This letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  Additionally, this letter described how appropriate disability ratings and effective dates were assigned.  

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's available service treatment records and relevant VA and private medical records are in the file.  All records identified by the Veteran as relating to these claims have been obtained.  The Board finds that the record contains sufficient evidence to make a decision on the claims.  VA has fulfilled its duty to assist. 

With regard to claims for service connection, the duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i).  The Veteran was provided a VA examination in January 2008 VA examination which focused on the question of secondary service connection, as opposed to direct service connection.  However, as will be discussed below, service connection for alcoholism cannot be granted on a direct basis as a matter of law.  A second VA examination specifically to address alcoholism was provided in August 2012.  The March 2010 psychiatric examination and a 2013 addendum also addressed the Veteran's secondary claim.  As such, a new VA examination or opinion specifically addressing direct service connection is not warranted for this claim. 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Laws and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet.App. 247, 253 (1999); 38 C.F.R. § 3.303 .

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet.App. 303 (2007); see Savage 10 Vet.App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet.App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  See Savage, 10 Vet.App. at 495-96; see also Hickson, 12 Vet.App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

There must be objective indications of chronic disability, and this includes "signs" in the medical sense of objective evidence perceptible to an examining physician and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3).  A disability is considered chronic if it has existed for six months or more, even if exhibiting intermittent episodes of improvement and worsening throughout that six-month period.  38 C.F.R. § 3.317(a)(4).

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).

Service connection may also be granted for disability that is proximately due to or the result of a service connected disability.  See 38 C.F.R. § 3.310(a).  The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service connected disability by a service connected disability.  See Allen v. Brown , 7 Vet.App. 439, 448   (1995). 

When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition.  See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet.App. 183, 187 (1993). 

To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service connected disability, and (3) a medical nexus evidence establishing a connection between the current disability and the service connected disability.  Wallin v. West, 11 Vet.App. 509, 512 (1998); Reiber v. Brown, 7 Vet.App. 513, 516-17 (1995). 

Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-91, prohibits, effective for claims filed after October 31, 1990, (as in this case) payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse.  Moreover, § 8052 also amended 38 U.S.C.A. § 105(a) to provide that, 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 the line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs.  See 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(m) , 3.301(a).

The United States Court of Appeals for the Federal Circuit  (Court) has held that there can be service connection for compensation for an alcohol abuse disability acquired as secondary to, or as a symptom of, a veteran's service-connected disability.  Allen v. Principi, 237 F.3d 1368, 1377 (Fed. Cir. 2001).  The Court stated that such compensation would only result "where there is clear medical evidence establishing that the alcohol . . . abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol . . . abuse disability is not due to willful wrongdoing."  Id.

The Board notes that alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects.  38 C.F.R. § 3.301.

The corresponding regulations provide that alcohol abuse and drug abuse, unless they are a "secondary result" of an "organic disease or disability," are considered to be "willful misconduct."  See 38 C.F.R. §§ 3.301(c)(2), 3.301(c)(3).  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). 

With regard to granting service connection on a direct basis, the Board notes that service connection for alcoholism on a direct basis is prohibited under law, as being of misconduct origin.  38 C.F.R. § 3.301.  Therefore, service connection for alcoholism is denied on a direct basis as a matter of law.

Factual Background and Analysis

The Veteran is seeking entitlement to service connection for alcoholism.  Specifically, the Veteran asserted in a November 2007 statement that he has alcoholism as secondary to a psychiatric condition/PTSD.  The Veteran reported that he has been "an alcoholic" since near the end of his service and believes that he has PTSD which triggered his alcohol dependence.  The Veteran is currently service connected for a panic disorder without agoraphobia and PTSD.

A review of the Veteran's service records reflects that the Veteran was noted in a September 2001 service record as receiving a 'DWI' approximately 3 years prior. 

During a July 2006 VA psychiatric examination, the Veteran reported that he had one "DUI" (driving under the influence) prior to service.  His driver's license was suspended for 30 days, he had "one day in detox," and a $500 fine.  He reported that he used cannabis "fairly regularly" in high school. 

An October 2007 VA treatment record included the Veteran's report that he started using cannabis at the age of 12 and alcohol at the age of 16.  The Veteran reported that he consumed alcohol moderately since the age of 16, with the exception of while he was in the military where he drank every day.  He reported that his alcohol use "calmed down a lot" after he exited the military.  He reported that his father had "problems with alcohol, but has been abstinent."  He also reported the use of methamphetamines during his lifetime.  He noted that "part of the reason he enlisted..was [to] stop smoking marijuana," and he was afraid of where his drug use was headed.  Additional October 2007 treatment records included statements from the Veteran that work stress and fights with his significant other caused him to drink, including two binges which resulted in police involvement (discharging a weapon in his home and a DUI).  Conversely, he acknowledged that his drinking lead to problems in his relationship.  The Veteran also reported that after answering VA questions regarding his traumatic experiences in service, he had a strong urge to drink.  

The Veteran underwent a VA psychiatric examination in January 2008.  The examiner reviewed the claims file.  The examiner noted that the Veteran was cited for a DUI in September 2007.  The examiner took note of the Veteran's description of his marital and family relationships, his social relationships, and his activities and leisure pursuits.  The Veteran reported that he has been sober now for one week.  The prior week he was consuming alcohol and drank about 2.5 pitchers.  The Veteran graduated from a VA alcohol inpatient treatment program.  Upon examination and interview of the Veteran, the examiner diagnosed the Veteran with a panic disorder without agoraphobia and alcohol dependence continuous.  The examiner further noted that the Veteran's panic disorder without agoraphobia does not cause or aggravate the polysubstance dependence because the Veteran did not describe alcohol use for just symptom alleviation, but rather as "a pattern of use of dependence."  The examiner noted that the research he reviewed did not support alcohol dependence as secondary to the panic disorder without agoraphobia. 

In August 2009, the Veteran reported a family history of "uncles" with alcohol problems, and a history of a DUI at age 18.  The treatment care provider noted "hope that with treatment of his panic disorder, he will cut back" on alcohol consumption.  A September 2009 treatment record alluded to a correlation between a sleep disorder and alcohol consumption.

The Veteran was afforded a VA psychiatric examination in March 2010.  He continued to consume 12 to 24 beers a week.  He was assessed with panic disorder and alcohol dependence.  The examiner opined that his panic disorder with agoraphobia did not cause or aggravate his alcohol dependence "or vice versa."  A rationale for this opinion was not provided.

In March 2012, the Veteran's representative provided arguments for the Veteran's claim, along with treatises and internet articles related to alcoholism and psychiatric disorders.  An article entitled PTSD and Problems with Alcohol Use noted PTDS and alcohol problems often occur together, alcohol problems often lead to trauma, and that PTSD symptoms are often worsened by alcohol which can reduce the effectiveness of PTSD treatment.  The "fact sheet" also noted that war veterans diagnosed with PTSD and alcohol use tend to be binge drinkers.  "Binges may be in reaction to memories or reminders of trauma."

An article entitled Stress and Substance Abuse: A Special Report noted that there are high rates of comorbidity of PTSD and substance use disorder in war-related studies.  And that the frequent co-occurrence of PTSD and substance use suggests that the two are related.  Additionally, it cited a study that noted that "the onset of PTSD typically precedes the onset of substance abuse disorders."  

The opening sentence on the Relationship of Substance Use to PTSD Symptoms, from the American Journal of Psychiatry, notes that "elevated rates of comorbid depressive and anxiety disorders in patients with PTDS greatly complicate any effort to develop a model of the relationship between PTSD and substance use.  High rates of comorbidity suggest that PTSD and substance use disorder are functionally related to one another."  The article goes on to note that in some cases substance use precedes PTSD.  "Given that chronic substance use can lead to higher levels of arousal and anxiety as well as to sensitization of neurobiologic stress systems, substance abuse may result in a higher level of vulnerability to development of PTSD after exposure to trauma."  Additionally, PTSD can precede substance abuse, and the use of substances is a form of self-medication.

In August 2012, the Veteran was afforded a VA examination in conjunction with his alcohol dependence claim.  The examiner found that the Veteran's symptoms of PTSD and panic disorder were separate from his alcohol dependence symptoms.  He reported daily alcohol consumption, including consumption the night prior to the examination.  He reported that marital discord ensues from his drinking.  The examiner found that the Veteran's PTSD and panic disorder did not cause or aggravate the Veteran's alcohol dependence.  The examiner cited research which included findings of "comorbidity, co-occurrence, association, and temporal sequence" between substance abuse and anxiety disorders, but noted that none of the research included full causative findings.  The examiner noted that "to establish causation or etiology, there must be scientific proof of a cause and effect relationship.  To assure validity of the study, it must be published in a refereed journal and the findings duplicated by other independent sources."  One study noted the "plausibility of self-medication hypotheses" but that "causality in this association is far from accomplished."  Another article noted that "various causal pathways for PTSD/SUD have been proposed, including hypotheses focusing on self-medication, and vulnerability/susceptibility and the notion that the presence of one disorder confers high risk of the other.  However, etiologic uncertainty has limited the development and utilization of empirically-supported treatments."  The examiner noted that one article reported that there is an increased risk of developing drug or nicotine dependency with PTSD.  Citing the American Journal of Psychiatry, the examiner noted findings of comorbidity between PTSD and substance abuse disorders, and that "this comorbidity tends to be more severe and more refractory to treatment than those patients suffering for either diagnoses alone."  The examiner summarized that research of articles did not reveal scientific evidence that PTSD causes alcohol dependence.

The Board remanded the claim so that the examiner could elaborate on the causation aspect of his opinion.  In April 2013, the examiner provided an addendum opinion.  The examiner opined that the Veteran's alcohol dependence was less likely than not caused by service.  The examiner further explained that because two conditions occur simultaneously (here, referring to alcohol dependence and PTSD/panic disorder), it does not prove that one causes the other.  The examiner again cited research which included statements on comorbidity and correlation, but specifically did not reach the conclusion that there is a causative factor between a psychiatric disorder and substance abuse.   The examiner found that a search of literature by the VA medical librarian and the examiner did not reveal "objective professional scientific evidence that PTSD is the cause of alcohol dependence of the persistent aggravation of alcohol dependence."  The examiner also noted that there are no alcohol treatment records after 2007, and no evidence to indicate that there is permanent aggravation of alcohol dependence by PTSD.  The examiner noted that arguing the negative (there is no proof that PTSD does not cause alcohol dependence) is not scientific proof of a cause and effect relationship.  The examiner erroneously indicates some legal conclusions which the Board will not repeat in this decision.

With regard to granting service connection on a secondary basis, the Board notes that the medical opinions of record on the matter specifically reflects that the Veteran's panic disorder and PTSD do not cause or aggravate the Veteran's polysubstance dependence.  

In adjudicating a claim, the Board must assess the competence and credibility of the Veteran.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board also has a duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  The Board acknowledges that the Veteran is competent to give evidence about what he experiences.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.)

Here, the Board finds the Veteran's statements regarding his symptoms and history to be credible.  The Board does not find that the Veteran is competent to provide a causation argument regarding secondary service connection for his alcohol dependence.  Indeed, other than one statement in October 2007 regarding an increase in PTSD symptoms when filling out VA paperwork causing him to want to drink, the Veteran has indicated that his alcohol consumption tends to come from work and relationship-stress.  Conversely, he has recognized that his alcohol consumption negatively impacts his work and relationships.  

The treatise information provided by the Veteran and the research cited by the 2012/2013 examiner noted that there is a plausible correlation between the two due to the use of alcohol as a self-medication to treat the symptoms of PTSD.  While the examiner noted that there is no specific causative finding, the research does not this possible correlation.  The Board, however, notes that in this case, the Veteran's alcohol and substance abuse history started long before his enlistment in service.  The Veteran has a family history of alcohol dependence, and was arrested for a DUI two years before he enlisted.  He has also stated that he enlisted as an attempt to escape from a growing marijuana dependence.  He indicated he drank moderately from age 16 until his enlistment, and that his alcohol use drastically increased in service.  He did not state that this increase occurred after exposure to a traumatic event.  As such, the Board finds that secondary causation is not shown by the evidence of record.

The examiners have opined that the Veteran's panic disorder and PTSD have not aggravated his alcohol dependence.  Based on the available evidence, the Board finds that secondary aggravation of alcohol dependence is also not supported by the record.  In 2007, the Veteran reported that his alcohol consumption had decreased after his discharge from service.  He indicated that he had one night of binge drinking after a break-up in 2007 and was arrested for a DUI.  After this DUI arrest and an incident where the police reported to his home after he discharged a weapon, the Veteran sought in-patient alcohol treatment for 31 days.  He completed his treatment program and has indicated that while he was abstinent for a period of time and that his dependence has steadily increased.  His panic disorder and PTSD symptoms, however, have remained at a steady rating from 2007 onward.  His GAF readings have been lower for his alcohol dependence than for his PTSD and panic disorders.  As such, the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for alcoholism must be denied, under direct, secondary and secondary aggravation theories.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for alcoholism, to include as secondary to service-connected panic disorder with agoraphobia and PTSD is denied.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs