Citation Nr: 1538749 Decision Date: 09/10/15 Archive Date: 09/18/15 DOCKET NO. 06-09 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for alcohol abuse, to include as secondary to service-connected depression. 2. Entitlement to service connection for infectious hepatitis with cirrhosis of the liver. 3. Entitlement to an initial disability rating in excess of 50 percent, and in excess of 70 percent after January 6, 2012, for depression. 4. Entitlement to an effective date earlier than February 23, 2005, for the grant of service connection for depression. 5. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD H. M. Walker, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2005, March 2008, and April 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In the September 2005 rating decision, the RO denied service connection for posttraumatic stress disorder (PTSD), depression, and alcohol abuse. In the March 2008 rating decision, the RO declined to reopen the Veteran's service connection claim for infectious hepatitis. In its October 2011 decision, the Board reopened the Veteran's infectious hepatitis claim and remanded it for further development. In the April 2011 rating decision, the RO granted service connection for depression, not otherwise specified (NOS). It assigned a 50 percent rating, effective February 23, 2005. In November 2011, the Veteran appealed both the effective date and rating assigned. In an April 2012 rating decision, the RO increased the rating for depression to 70 percent, effective January 6, 2012. Although this was a partial grant of the benefit sought, the Board notes that the Veteran has indicated continued disagreement with the rating assigned for his depression and the Veteran has not been granted the maximum benefit allowed; thus, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In July 2014, the RO denied entitlement to TDIU. In February 2015, the Veteran's representative submitted a notice of disagreement for the denial. The Board finds that the TDIU claim is part and parcel to the increased rating claim for depression. As such, TDIU is a perfected issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The issues of entitlement to service connection for infectious hepatitis with cirrhosis; increased rating for depression, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's alcohol abuse was caused or aggravated by his service-connected depression; direct service connection for alcohol abuse is denied as a matter of law. 2. The RO received the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder on February 23, 2005; there is no evidence of any earlier formal or informal claim for service connection for an acquired psychiatric disorder prior to February 23, 2005. CONCLUSIONS OF LAW 1. Alcohol abuse was neither caused, nor aggravated by his service-connected depression. 38 U.S.C.A. §§ 105, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303, 3.310 (2014). 2. The criteria for an effective date prior to February 23, 2005, for the award of service connection for depression, are not met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400, 3.816 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, the VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran 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); 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 Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in June 2005 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2014); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The Board notes that the initial, June 2005 VCAA notice was sent to the Veteran prior to the decision in Dingess v. Nicholson, 19 Vet. App. 473 (2006), and accordingly, this notice did not address any disability evaluation and effective date considerations. The Board finds, however, that the Veteran was not prejudiced by this omission. As service connection is being denied for alcohol abuse, there is no prejudice in not providing notice as to downstream issues related to ratings and effective dates. The request for an earlier effective date is a downstream issue from the grant of the benefit sought. 38 U.S.C.A. § 5103(a) does not require VA to provide notice of this information for newly raised or "downstream" issues in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice. See VAOPGCPREC 8-2003 (Dec. 22, 2003). As such, no notice is required regarding the Veteran's earlier effective date claim for the grant of service connection for depression. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ( stating that "no error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced attorney who has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (indicating that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. The RO attempted to obtain any Social Security Administration (SSA) related to the Veteran. In August 2008, the RO sent SSA a request for records, and a response dated that same month indicates no records were found. In January 2009, the RO sent the Veteran a letter informing him that his SSA records are unavailable, and it included an address to send any of these records he may have. Following receipt of this letter, the Veteran did not submit any copies of SSA records in his possession. The Board finds that all reasonable attempts to obtain these SSA records were made and that any further attempts to obtain these records would be futile. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claim. The duty to assist also 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) (2014). In this case, the Veteran was most recently provided a VA examination in January 2012. The examiner considered the Veteran's complaints, as well as the service treatment records, post-service treatment records, and conducted a physical examination. Based on the foregoing, the examiner concluded that the Veteran's alcohol abuse was not due to his service-connected depression. The examiner was unable to determine whether his alcohol abuse was aggravated beyond its natural progression by the service-connected depression without resort to speculation. Often, when VA examiners indicate that he or she is unable to provide an opinion without resort to speculation, the examination is deemed inadequate. For the reasons more fully discussed below, the Board finds that the 2012 examiner provided a detailed reasoning for his inability to provide an aggravation opinion regarding the alcohol abuse. Therefore, as the opinion was based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinion provided, the Board concludes that the opinion obtained in this case is adequate. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim. Given the January 2012 VA examination and report; the association of outstanding treatment records; and the subsequent readjudication of the claim; the Board finds that there has been substantial compliance with its October 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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). Legal Criteria I. Service Connection Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). 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). VA regulations state that no compensation shall be paid if a disability is the result of alcohol abuse. An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in the line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. 38 C.F.R. § 3.301(a). For the purpose of this regulation, 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(d); see also 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. § 3.1(m). Furthermore, VA's General Counsel has ruled that direct service connection for a disability which results from a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits where, as here, the claim was filed after October 31, 1990. See VAOPGCPREC 7-99, 64 Fed. Reg. 52375 (1999); VAOPGCPREC 2-98, 63 Fed. Reg. 31263 (1998). Service connection may be recognized for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his or her service-connected disability. See, Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In order to qualify for service connection in this regard, the Veteran must establish, by clear medical evidence that his alcohol or drug abuse disability is secondary to or is caused by a service-connected disorder. See Allen, 237 F.3d at 1381. A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (2014). Secondary service connection is permitted based on aggravation. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Establishing service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.303, 3.310 (2014). In adjudicating these claims, the Board must assess the competency and credibility of the veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994). 2. Effective Date Unless otherwise specified, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is to be fixed in accordance with the facts found, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In new service connection cases, the effective date is the date of receipt of claim or the date entitlement arose, whichever is later. However, if the claim is received within one year of separation from service, the effective date will be the day following the date of separation from service. 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a)). 38 C.F.R. § 3.155 provides that any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. If a formal claim for compensation has previously been allowed, or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of examination or hospitalization can be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b). As to reports prepared by VA or the uniformed services, the date of receipt of such a claim is deemed to be the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital. For reports prepared by a non-VA hospital where the veteran was maintained at VA expense, the date of admission to the hospital is accepted as the date of receipt of claim if VA maintenance was authorized prior to admission. 38 C.F.R. § 3.157(b)(1). For all other reports, including reports from private physicians, laymen, and state and other institutions, the date of receipt of the reports is accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(2-3). Factual Background and Analysis I. Service Connection The Veteran contends that his alcohol abuse was caused or aggravated by his service-connected psychiatric disorder. First, there is no question that the Veteran has a history of alcohol abuse. This is clearly documented in the record. Thus, the main question before the Board is whether the Veteran's alcohol abuse was caused or aggravated by his service-connected depression. For the reasons discussed below, the Board finds that it has not. As noted above, service connection for alcohol abuse is never warranted on a direct basis as there is no legal entitlement under the law. 38 U.S.C.A. §§ 105, 1110, 1131; 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98 (February 10, 1998); Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, the Board will limit its discussion as to whether the Veteran's alcohol abuse is secondary to his service-connected depression. A review of the service treatment records shows the Veteran's participation in the alcohol and drug abuse program. Some records show the Veteran's reports of using alcohol only occasionally. In February 2009, the Veteran was afforded a VA psychiatric examination, during which he was diagnosed as having depression, NOS, and alcohol and polysubstance abuse. The Veteran indicated that he had no pre-military drug or alcohol abuse-other than experimentation with marijuana and alcohol. He began using drugs and alcohol in the military due to peer pressure and his need to accommodate his work. He stated that he wanted to feel part of a group, so he was encouraged by others to do drugs and alcohol. Also, he described using stimulant drugs to stay awake for his shifts, and then used heroin to help him sleep due to the loud noise. He has had continued drug and alcohol abuse since that time. The examiner indicated that the Veteran was "possibly" or "partly" self-medicating his depression with drugs and alcohol. The examiner did not review the claims file in conjunction with the examination. In June 2010, the Veteran was afforded another VA psychiatric examination. He reported heavy drinking while in the military. The examiner diagnosed depression, NOS and polysubstance abuse, in sustained remission. She indicated that it is not unusual for people to abuse substances and alcohol in an attempt to feel relief from psychiatric symptoms. She noted, however, that she could not provide an opinion with respect to his alcohol abuse without resort to speculation. She stated that the Veteran's substance abuse appears to have started prior to his depression symptoms and he stopped using a few years after discharge. During a January 2012 VA examination, the Veteran reported self-medicating his depression symptoms with drugs and alcohol until 1997. He also used alcohol and drugs to cope with harassment, work, and lack of sleep. He told the current examiner that he used drugs because he was threatened by other soldiers who used drugs. The Veteran's "more significant issues with depression came when he had to get out of the military." The examiner indicated that based upon review of the claims file and interview and examination of the Veteran, his substance abuse problems were less likely than not caused by or chronically worsened by his service-connected depression. In reaching this conclusion, the examiner stated: Based on veteran's report of circumstances today it is this [evaluator's] opinion that onset of substance dependence issues occurred prior to onset of service connected condition of depression. An opinion about the issue of whether or not the substance dependence issues were chronically worsened by his current service connected mental health condition is not offered because it would be considered speculative to do so. Speculation regarding factors which contributed to (or chronically worsened) ongoing substance use are attributed to inconsistencies in the veteran's report and inability to retrospectively differentiate comorbid substance use and mood disturbance. Veteran has previously been reported to state that he used drugs and alcohol to cope with depression after military service. Today he stated that he would feel depressed when he wasn't using drugs and alcohol and that he would also use drugs and alcohol because he didn't feel good. There is no way to differentiate this cycle of substance use and mood disturbance. In addition veteran has had medical problems which have contributed to depressive symptoms. To date these conditions have not been identified as service connected. Regarding onset of alcohol and drug issues the veteran stated today that onset of alcohol and drug use was related to feeling physically threatened by other soldiers who used drugs. He said that when he got to Germany, which was early in his military career, he was placed in a room with another soldier who used drugs in front of him. He said that the [soldiers] threatened him that if he didn't use drugs or told on them they would put Veteran in a wall locker and drop Veteran off the roof. Veteran reported his acute sense of threat related to this situation diminished after a couple of months when he was moved to another duty area with a small group of soldiers that he described as "tight knit" and that he felt safe under the command of 1st Sgt after telling him about the situation with the other soldiers. In addition, Veteran has also previously reported that he started using drugs in order to "fit in." Military records also support this factor. Today veteran reported that onset of depression in military was primarily related to events which occurred immediately prior to his discharge. He did report some stress related to high demand of work and poor working conditions while in Germany. Records indicate signs of substance abuse including being under the influence while on duty and being referred for substance abuse treatment. Upon careful review of the evidence of record, the Board finds that service connection for alcohol abuse secondary to service-connected depression is not warranted. In other words, the preponderance of the evidence is against the claim. The Board finds that the most competent and credible evidence of record shows that the Veteran's alcohol abuse was not caused or aggravated by his military service. First, the 2012 VA examiner noted that the Veteran's alcohol abuse pre-dated his depression symptoms. The examiner stated that the Veteran's service treatment records support this finding inasmuch as his depression was primarily related to events that occurred immediately prior to discharge, and earlier during his time in service, he had already begun a significant drinking pattern. The examiner provided a detailed rationale for this opinion and it is supported by the evidence of record. As to whether the Veteran's alcohol abuse was aggravated by his service-connected depression, the Board finds there is no competent evidence of record showing that his alcohol abuse was permanently worsened by his depression. The Board finds that upon review of the January 2012 VA opinion, a possible aggravation of alcohol abuse by depression is too tenuous a basis on which to grant service connection on a secondary basis. The reasonable doubt doctrine requires that there be a "substantial" doubt and "one within the range of probability as distinguished from pure speculation or remote possibility." 38 C.F.R. § 3.102; see also Obert v. Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 462 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (holding that any medical link that is speculative, general or inconclusive in nature is of no probative value and not a sufficient basis to grant service connection). Simply put, the evidence of record does not rise to a level of substantial doubt or within the range of probability. The Board has considered the Court's holding in Jones v. Shinseki, 23 Vet. App. 382 (2010), that when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate, as a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability. Id. at 389-90. In this case, the Board concludes that the January 2012 VA examiner did provide sufficient reasons for being unable to provide a concrete opinion as to possible aggravation. Specifically, the examiner noted that the Veteran has been inconsistent with respect to the onset of his alcohol abuse. He has previously reported that he used drug and alcohol to cope with depression after service, but then during the current examination, the Veteran reported feeling depressed when he was not using drugs and alcohol. He also reported using drugs and alcohol when he did not feel good. Additionally, the examiner noted that he is unable to differentiate the cycle of substance abuse with the Veteran's mood disorder. In light of the foregoing, the Board finds the January 2012 VA examination report adequate, but it may not serve as a basis for granting service connection on a secondary basis. The Board has also considered the February 2009 VA examination report, in which the examiner stated the Veteran's alcohol abuse was possibly or partly related to his depression. The Board finds, however, that this is an equivocal opinion and the examiner did not review the claims file prior to providing the opinion. In that vein, the Court has held that medical opinions that are equivocal in nature, such as those expressed in speculative language (e.g., "could have caused"), do not provide the degree of certainty required for medical nexus evidence. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Obert at 33. As such, the February 2009 VA opinion is afforded no probative value. As noted above, the most competent and credible evidence as to the etiology of the Veteran's alcohol abuse are the contemporaneous service treatment records showing significant treatment for substance abuse, and the January 2012 VA examiner's opinion finding that his alcohol abuse was not caused by his depression. Moreover, the Board finds no competent or credible evidence showing that the Veteran's alcohol abuse was chronically worsened by his depression. The Board has considered the Veteran's contentions that his alcohol abuse were caused or aggravated by his service-connected depression. In this regard, the Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss the existence of drinking a lot during and since service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, in most cases, the Veteran is not competent to render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In this instance, therefore, the Veteran, as a lay person, has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his history of alcohol abuse and his service-connected depression. As such, the Board ascribes far more weight to the conclusions of the medical professionals who concluded that the Veteran's alcohol abuse was not caused by his military service or service-connected depression. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In short, the most probative medical evidence specifically rules out a relationship between the Veteran's alcohol abuse and his service-connected depression. The Board places more weight on the 2012 VA opinion of the competent VA medical professional who provided the opinion based on review of the medical records and claims file with consideration of the Veteran's reports and the absence of any competent and credible evidence during and since service showing any aggravation of his alcohol abuse due to his depression symptoms, than on the Veteran's lay assertions that his alcohol abuse is secondary to his service-connected depression. As such, no finding of service connection is warranted for alcohol abuse on a secondary basis. As the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for alcohol abuse, the "benefit-of-the-doubt" rule is not applicable and the Board must deny his claim. See 38 U.S.C.A. § 5107(b). II. Effective Date The Veteran contends that an effective date earlier than February 23, 2005, is warranted for the grant of service connection for depression. Neither the Veteran, nor his representative has asserted the basis for this earlier effective date claim. The Board notes at this juncture, that the increased rating claim for his depression is remanded below and covers the entire appeal period-from February 23, 2005, to the present. To the extent that the Veteran may be seeking an earlier effective date for the grant of the 70 percent rating during the appeal period (February 23, 2005, to the present), this will be addressed with the increased rating claim below. As such, the Board will proceed to exclusively determine whether an effective date prior to February 23, 2005, is warranted for the initial grant of service connection for depression. For the reasons discussed below, the Board finds that an earlier effective date is not warranted. The Board has considered the Veteran's testimony and contentions. However, the Board is constrained by the applicable law and regulation governing the assignment of effective dates for claims. The applicable law and regulation provide that the effective date of an award of service connection based on a claim received more than one year after a veteran's discharge from service will be the later of the date of receipt of claim or the date entitlement arose. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Here, the Veteran's claim for service connection for a psychiatric disorder was received by VA on February 23, 2005. The Veteran does not contend, nor does the evidence show, that he filed and VA received a formal or informal claim for service connection for a psychiatric disorder prior to February 23, 2005. Indeed, the Veteran has received VA treatment for variously diagnosed psychiatric disorders, but no VA treatment record dated prior to February 23, 2005, show any informal claim for service connection for an acquired psychiatric disorder. The Board is bound by law on this matter, and is without authority to grant the benefit sought on an equitable basis. As no statutory or regulatory exceptions to the rule governing the effective date here is for application, there is no legal basis to grant the appeal. As this appeal must be denied as a matter of law, the benefit of the doubt rule is not for application. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for alcohol abuse is denied. An effective date earlier than February 23, 2005, for the grant of service connection for depression is denied. REMAND Unfortunately, the Board finds that additional development is necessary regarding the Veteran's service connection claim for infectious hepatitis with cirrhosis, increased rating claim for depression, and claim for TDIU. Service Connection The Veteran contends that his infectious hepatitis is related to the air-gun inoculations he received in service. His representative argues that the AOJ did not comply with the Board's October 2011 remand directives. She specifically indicated that the most-recent VA examination in January 2012 was not performed by someone with "increased familiarity in infectious diseases" as requested in the remand. The Board finds that the January 2012 examiner, who is an experienced physician and has worked with VA for many years, has the requisite familiarity with infectious diseases-including hepatitis. Importantly, the Board never requested a specialist in infectious diseases as urged by the Veteran's representative. Additionally, there is no evidence to suggest that the VA examiner does not have the level of familiarity contemplated by the Board in its October 2011 remand. As such, the Board finds that there has been substantial compliance with the October 2011 remand directive with respect to the competency of the examiner who provided the January 2012 opinion regarding the claimed infectious hepatitis with cirrhosis. Nevertheless, a remand is necessary for a supplemental opinion as the January 2012 examiner did not discuss the significance, if any, for the Veteran's contention that air-gun inoculations caused his infectious hepatitis. Moreover, the examiner did not discuss the cause of the Veteran's currently diagnosed cirrhosis of the liver and any relationship it may have to service or his claimed infectious hepatitis. As such, a remand is necessary for a supplemental opinion regarding the nature and etiology of his claimed infectious hepatitis with cirrhosis of the liver. Increased Rating Regarding the Veteran's increased rating claim, he maintains that his depression symptoms warrants an initial rating in excess of 50 percent, and a rating in excess of 70 percent, beginning January 6, 2012. The Veteran was most recently afforded a VA psychiatric examination (fee basis) in July 2014. A review of the Disability Benefits Questionnaire (DBQ) shows sparse notations of the Veteran's symptoms, and many of the questions were left blank. Importantly, the sections requesting a discussion of the Veteran's current psychosocial and marital functioning, and post-military/current occupational functioning, are completely blank. The Veteran's representative argues that the July 2014 VA examination is inadequate, and the Board agrees. As such, a new examination is required to determine the current severity of his psychiatric disorder that includes a detailed discussion of the social and occupational impairment the Veteran experiences. TDIU The Veteran's claim for a TDIU is inextricably intertwined with the remanded claims; consideration of this matter must be deferred pending resolution of these claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file, including any evidence contained in electronic format, to an appropriate examiner to determine the nature and likely etiology of his infectious hepatitis with cirrhosis of the liver. The claims file must be made available to the examiner prior to the examination. It is left to the examiner's discretion whether to reexamine the Veteran. Based on various possible means of exposure to hepatitis both generally and in this case (including the Veteran's reported history of tattoos and intravenous drug use), and the clinical progress of this Veteran's disease, the examiner should address the following: A. Is it at least as likely as not (i.e., is there a 50/50 chance) that the Veteran's infectious hepatitis is etiologically related to his period of service, to include from inoculations administered through jet injector air guns? In answering this question, the examiner should consider the Veteran's lay testimony regarding having been inoculated with a contaminated needle in service and any other possible means of exposure during service. B. Is it at least as likely as not (i.e., is there a 50/50 chance) that the Veteran's infectious hepatitis with cirrhosis was caused or worsened by service or his in-service treatment for hepatitis. The examiner is asked to specifically discuss the clinical history of hepatitis A, B, and C diagnoses and their impact on his currently diagnosed cirrhosis of the liver. The examiner is asked to specifically address the findings contained in the November 2008 VA examination report, in which the examiner found that it is "biological plausible" that the Veteran could have developed hepatitis C from air-gun injectors. The examiner should also address post-service risk factors and describe the reported post-service IV drug use. The examiner should discuss whether any symptoms of hepatitis C and cirrhosis of the liver were manifested during service and whether the period of time from discharge from service to the initial diagnosis has any effect on the analysis regarding the likelihood that hepatitis C was in fact contracted during military service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A complete rationale for any opinion must be provided. 2. The AOJ should arrange for the Veteran to be scheduled for a VA psychiatric examination by an examiner with the sufficient expertise to ascertain the severity and manifestations of his service-connected depression. The claims folders, and any pertinent evidence in an electronic format, must be made available to and reviewed by the examiner, and any indicated studies should be performed. The AOJ should ensure that the examiner provides all information required for rating purposes. The examiner must provide a multi-axial diagnosis with a Global Assessment of Functioning score and should also offer a detailed discussion concerning the impact of the Veteran's service-connected depression on his social and occupational functioning. The supporting rationale for all opinions expressed must be provided. 3. The AOJ should undertake any other development it determines to be warranted. 4. Then, the AOJ should readjudicate the Veteran's claims on appeal-including his TDIU claim. If the claims remain denied, a Supplemental Statement of the Case must be furnished to the Veteran and his representative and they must be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs