Citation Nr: 1435139 Decision Date: 08/06/14 Archive Date: 08/20/14 DOCKET NO. 07-13 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD) with alcohol dependence. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from May 2000 to September 2000 and form February 2003 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) from an October 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Boston, Massachusetts. This matter was previously before the Board in December 2013 and was remanded for further development. It has now returned to the Board for further appellate consideration. The extensive procedural history of this matter may be found in the December 2013 Board remand, and in prior remands. During the pendency of the Veteran's claim, he has been granted service connection for PTSD with alcohol dependence. The Board finds that the RO substantially complied with the mandates of the December 2013 remand and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Although the examiner did not discuss the Veteran's gambling, the Board finds, as discussed in further detail below, that the evidence is against a finding of a chronic gambling addiction disability, and the evidence is not indicative of a gambling addiction disability causally related to, or aggravated by service, or a service-connected disability; thus, a further opinion is not warranted. FINDINGS OF FACT 1. The Veteran is service connected for PTSD with alcohol dependence. 2. The most probative evidence of record is against a finding that the Veteran has an acquired psychiatric disability separated and distinctly diagnosed from his PTSD with alcohol dependence, which is causally related to, or aggravated by, service or a service-connected disability. CONCLUSION OF LAW The criteria for an entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD) with alcohol dependence, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304,3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in March 2011. VA has a duty to assist the appellant in the development of the claim. The claims file includes service treatment records (STRs), post-service medical records, and the statements of the Veteran in support of the claim. The Veteran has been given ample opportunity to provide VA with additional records or request that VA assist him in obtaining such. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that an adequate opinion has been obtained. The claims file includes several VA opinions, most recently in 2014. The Board finds that the Veteran has been afforded an adequate examination with opinion. The 2014 opinion is based on examination findings, the Veteran's clinical records and the Veteran's reported symptoms. A more than adequate rationale has been provided. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. The evaluation of the same disability under various diagnoses is to be avoided. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. See 38 C.F.R. § 4.14. Analysis The Board has reviewed all of the evidence in the Veteran's claim file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran is service connected for PTSD with alcohol dependence. In Clemons v. Shinseki, 23 Vet. App (2009), the Court held that an appellant's diagnoses which arise from the same symptoms for which he is seeking benefits, do not relate to entirely separate claims not yet filed by the appellant. Rather, these diagnoses should be considered to determine the nature of the appellant's current condition relative to the claim he did submit. The claims file includes several diagnoses for the Veteran. Thus, the Board has considered whether the Veteran's symptoms and various diagnoses are actually separate and distinct disabilities, or if the symptoms relate to the same diagnosis. An October 5, 2004 VA outpatient psychology notes reflects that in terms of PTSD symptoms, the Veteran endorsed intrusion, nightmares, emotional numbing estrangement, social isolation, avoidance of memories through constant activity, exaggerated startle, chronic sleep deprivation, irritability/anger, irritability much of the day, psychomotor agitation, and concentration and memory problems for day-to-day things. The diagnosis was "rule out PTSD." A November 16, 2004 VA mental health group therapy record reflects that the Veteran was diagnosed with adjustment reaction. A December 6, 2004 VA outpatient record reflects complaints of insomnia/depression. It was noted that the Veteran does not have a high intake of caffeine/soda, and was to have a PTSD evaluation. A December 13, 2004 mental health group therapy record reflects of the Veteran was diagnosed with adjustment reaction. 2005 VA PTSD psychology notes reflect that the Veteran reported symptoms of anger and irritability, sleep difficulties, intrusive thoughts about the war, increasing stress, and depression. A March 2005 note reflects that his reported symptoms are most likely of PTSD, although he had not been formally diagnosed. The Veteran underwent an examination in August 2005. The pertinent history noted that for the specific history of PTSD, his current symptoms include headache, tiredness, anger, frustration, tolerance being quite low, and overall of depressed mood. It was noted that the Veteran can become tearful often. It was also noted that he has no other mental disorder other than PTSD. A January 2006 VA mental health/OPC/psychiatry note reflects that the Veteran was seen for evaluation of his mental health to determine if he had PTSD. The Veteran's chief complaint and presenting symptom was "I've been feeling depressed frustrated, I don't want to be around people". He also reported that he did not care about things and argued with his wife. It was noted that the depressive symptoms included a nine month period of sadness, decreased self-esteem, excessive guilt, decreased appetite, weight gain of 15 to 20 pounds, initial insomnia, frequent waking, internal insomnia, decreased concentration, excessive fatigue, and prolonged active suicide ideation with a plan to drive his car into a tree. The Veteran was diagnosed with chronic PTSD, depression, panic disorder without agoraphobia, and pathological gambling. A March 14, 2006 outpatient/psychiatry record reflects the Veteran's panic/severe anxiety attacks continue to occur multiple times in a week and he copes with them by utilizing behavior techniques. The Veteran was diagnosed chronic PTSD, depression not otherwise specified, panic disorder without agoraphobia, pathological gambling, and a history of alcohol abuse. It was noted that gambling was an inactive problem due to financial factors. A May 3, 2006 outpatient/psychiatry VA record reflects that the Veteran has been diagnosed with chronic PTSD, depression, panic disorder, pathological gambling, and caffeine dependence. 2007 through 2009 VA clinical records also reflect a diagnosis of "depression/ PTSD." An October 2012 psychiatric outpatient note reflects that the Veteran was reportedly not on any medication since 2007, when he was last seen at the Boston Mental health psychiatry outpatient clinic. The Veteran reported that he had not had any problems prior to his deployment to Iraq. The Veteran was depressed, anxious, an reported having had some panic attacks. The listed diagnoses were depression and PTSD. The Veteran underwent a VA examination in June 2013. The Veteran was diagnosed with PTSD, alcohol dependence, and adjustment disorder with depressed mood. The examiner stated that it was not possible to differentiate the symptom of depression to different diagnoses. The examiner stated that the Veteran's depressive symptoms partially relate to this PTSD but also related to his daily excessive use of alcohol and to the marital strife that he has been experiencing for years with his wife. It was noted that the Veteran reported that he first felt depressed after his return from Iraq. The Veteran also reported he has panic attacks in which his heart pounds, he is short of breath, and he feels that he might die. A June 17, 2013 addendum reflects that the examiner had been asked to give a medical opinion about what psychiatric diagnosis the Veteran may have in addition to PTSD. The examiner stated as follows: The veteran is 50% [service connected] for PTSD and he continues to report active symptoms of that disorder. He also is drinking to excess (by his report) on a daily basis and he has a chronic adjustment disorder with a depressed mood related to his ongoing marital strife. When asked what may have precipitated his depressive symptoms following his service in the Iraq War, the veteran points to traumatic experiences such as a vehicle in front of his vehicle being blown up with resulting deaths and serious injuries as well as to experiences in the war when he and fellow soldiers were fired upon. He denies depressive episodes prior to his war experience. These experiences were also the precipitant for his panic attacks. This veteran clearly has struggled with serious problems and he is very depressed. His depressed mood, however, is as likely as not (50% or greater probability) a function of PTSD, alcohol dependence (and substance-induced depressed mood), and his serious marital and financial stressors. In order to help to determine if he has an independent depressive disorder, it would seem necessary for him to attain sobriety from alcohol and to diminish his marital and financial stress. The Board notes that VA cannot insist that the Veteran abstain from alcohol, and diminish his marital and financial stress, so that he may be reexamined. An August 2013 VA mental health note reflects that the Veteran continued to complain of depressed mood and reported a full range of symptoms associated with a diagnosis of major depression: feels sad and depressed, irritable, hopeless, experiences low self-esteem, indecisiveness, and fatigue. The Veteran reported difficulties with many areas of life, including taking care of his children, and being close to his wife. He was diagnosed with PTSD and major depression. A November 22, 2013 mental health outpatient note reflects that the Veteran reported a problem of depressed mood. He reported that he was having trouble with his wife, and had decided to get a divorce. The Veteran was diagnosed with PTSD and major depression. A December 4, 2013 mental health psychiatry outpatient note reflects PTSD symptoms of intrusive thoughts and memories, nightmares, anxiety with reminders, avoidance of reminders, negative feelings, emotional detachment, anger, decreased interest in activities, irritability and anger outbursts, poor concentration with forgetfulness, very poor sleep, hyper vigilance, and exaggerated startle response. It was further noted that with regard to his depressive symptoms, he reported low mood, low-energy, poor sleep, decreased appetite, and past suicide without intent or plan. It was noted that he had used alcohol excessively, and had a history of periodic excessive gambling. Current stressors were noted to include an ongoing difficult relationship with his wife and his recent decision to file for divorce, and apply for custody of his children The December 2013 VA clinician stated that "all mental health diagnoses and described [symptoms] are at least as likely as not either disorders and/or [symptoms] that first manifested, or were caused or aggravated by events in active service; or, were caused or aggravated by service-connected PTSD. The examiner diagnosed the Veteran with PTSD; Major Depression; and Alcohol Use Disorder The Veteran underwent a VA examination in June 2014. The clinician examined the Veteran and completed a thorough review of the clinical records. The examiner diagnosed the Veteran with two disabilities: PTSD and alcohol dependence. The examiner stated in pertinent part, as follows: First of all, it is more than adequately clear that a [diagnosis] of PTSD is appropriate here. . . . As to the depressive aspects of [the Veteran's] situation, depressive symptoms are indeed present on a chronic basis. However, I believe that for the most part they are attributable to his service connected PTSD, and are a direct or indirect consequence of that. By indirect, I mean to include depressive symptoms resulting from the breakup of his marriage. I cite this depressive material as an indirect consequence of his PTSD, since I believe that his PTSD is the root cause of the failure of his marriage. In support of my viewpoint that his depression is a consequence of his PTSD, I would point to the final paragraph of Dr. Brailey's 12/27/13 progress note: "In sum, all mental health diagnoses and described [symptoms] are at least as likely as not either disorders and/or [symptoms] that first manifested, or were caused or aggravated by events in active service; or, were caused or aggravated by service-connected PTSD." Actually, my feeling is that the best way to handle this situation is to not list depression (or Adjustment disorder with depressed mood, as used by Dr. Kleespies) as a separate diagnosis under these circumstances. Rather I believe that the depressive symptoms should be construed as a feature of [the Veteran's] PTSD. In Boggs v. Peake, 520 F.3d 1330 (Fed.Cir.2008), the Court held that "claims based on separate and distinctly diagnosed diseases or injuries must be considered separate and distinct claims." Id. at 1336. The Board finds, based on the evidence above, that the Veteran does not have a separate and distinct diagnosis of depression, adjustment disorder, and/or a panic/anxiety disability. With regard to a panic/anxiety disorder, the Veteran has previously reported panic attacks and he has been diagnosed with panic disorder. The December 4, 2013 mental health psychiatry outpatient note reflects PTSD symptoms of anxiety. At the 2014 examination, the Veteran denied panic attacks. Nonetheless, as he has been diagnosed with such, and reported such, during the pendency of his claim, the Board has considered whether he has a separate diagnosis of such. The Board finds that he does not. The 2013 report reflects that anxiety is a symptom of PTSD. The 2014 report also reflects that the Veteran's PTSD symptoms include anxiety. In addition, the 2005 examination report reflects that the Veteran "did describe a form of panic attack in which he remembers some combat experience and injuries and can feel quite panicked." In sum, the evidence reflects that the Veteran has panic and anxiety as a symptom of his PTSD. The Board also finds that the Veteran is not prejudiced by the Board's actions. In Amberman v. Shinseki, the Federal Circuit recognized that separately diagnosed psychiatric conditions could be service connected, but could not be separately rated unless they resulted in different manifestations. 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("Section 4.14 clearly contemplates that several separately diagnosed disorders may have a single manifestation, and it clearly prohibits the VA from rating that manifestation for each disorder."). Thus, even if the Veteran had a separate diagnosis of a panic/anxiety disorder, he could not be separately rated for such because his symptoms have been shown to be symptoms of his service-connected PTSD. With regard to depression, the Board also finds that the Veteran is not entitled to service connection for such. As noted above, the March 2005 VA PTSD psychology notes reflect that the Veteran reported symptoms, which included depression, are most likely of PTSD, although he had not yet been formally diagnosed. In addition, the 2013 report reflects that the depressed mood is as likely as not a function of PTSD, and cannot be differentiated from another diagnosis. Finally, the June 2014 clinician opined that the Veteran's depressive symptoms should be construed as a feature of the Veteran's PTSD, and not as a separate diagnosis. With regard to adjustment disorder/reaction, the November and December 2004 VA mental health group therapy records reflect that the Veteran was diagnosed with adjustment reaction, rather than depression or PTSD. As explained by the 2014 examiner, the "adjustment" disorder is not a separate diagnosis but a feature of the Veteran's PTSD. With regard to the Veteran's gambling, the most recent VA examination reports do not note an acquired psychiatric disability of gambling addiction. The Veteran's past diagnosis of pathological gambling is based on his self-reported history and that of his wife. In addition, the evidence reflects that the Veteran was able to abstain from gambling due to financial concerns. Finally, the evidence reflects that he had periods of excess gambling, which is evidence a finding of a chronic disability. The record does not support a finding that the Veteran had a gambling problem in service. While the Veteran was noted to have pathological gambling during the pendency of the claim, the evidence does not reflect that it was causally related to, or aggravated by, service or a service connected disability. Moreover, the evidence does not support a finding that it is accompanied by symptoms which may relate to a separate and distinct diagnosis from his PTSD. There is also contradicting evidence of a caffeine dependency. While one VA records notes a caffeine dependency (May 2006), another VA clinical record reflects that he did not have a high intake of caffeine and denied excessive use of caffeine (December 2004). The May 2006 report does not provide an adequate rationale for the caffeine dependency. There is no competent probative opinion, with reported factual history, that the Veteran has a caffeine dependency, or that any such dependency, if it exists, is an acquired psychiatric disability causally related to, or aggravated by, service or a service-connected disability. The probative value of medical opinions is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guarneri v. Brown, 4 Vet. App. 467, 470-71 (1993). There is no requirement that additional evidentiary weight be given to the opinion of a medical provider who treats a veteran; courts have repeatedly declined to adopt the "treating physician rule." See White v. Principe, 243 F.3d 1378, 1381 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The Board finds that the 2014 opinion is the most probative as the examiner considered the extensive clinical record and provided a very thorough rationale. The Board also notes that the evidence does not support a finding that the Veteran had alcohol dependency or depression while in service. Thus, the examiner's rationale that his symptoms are due to his PTSD, which had its onset after war experiences in service, is supported by the evidence. The Veteran is competent to report anxiety, feelings of panic, a depressed mood, and symptoms indicative of difficulty adjusting to life after service. However, he has not been shown to have the experience, training, or education necessary to make a diagnosis or etiology opinion as to acquired psychiatric disabilities. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of psychiatric disabilities and their varied symptoms. The Board finds that such findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, the Veteran has a diagnosis of PTSD and alcohol dependency; he is already service-connected for such. His additional symptoms of depression, panic, and anxiety, are symptoms of his PTSD and are not separate and distinctly diagnosed diseases. The symptoms of a gambling addiction, and or a caffeine dependence have not been shown to be causally related to, or aggravated by, service or a service-connected disability. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2013), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for an acquired psychiatric disability other than PTSD with alcohol dependency, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs