Citation Nr: 1717294	
Decision Date: 05/19/17    Archive Date: 06/05/17

DOCKET NO.  12-02 231	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana 


THE ISSUES

1.  Entitlement to service connection for substance abuse including drug and alcohol abuse.

2.  Entitlement to service connection for a psychiatric disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from July 1979 to November 1983.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from March and October 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.


FINDINGS OF FACT

1.  Service connection for substance abuse (including drug abuse and alcohol abuse) is barred as a matter of law.

2.  A psychiatric disability, diagnosed as substance induced depressive disorder (cocaine), is not attributable to service.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for substance abuse (including drug abuse and alcohol abuse) have not been met.  38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.301, 3.303, 3.310(a) (2016).

2.  A psychiatric disability was not incurred or aggravated in active service.  38 U.S.C.A. §§ 1101, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2016). 



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159.  Here, the Veteran was provided with the relevant notice and information.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim and all appropriate development was undertaken in this case.  The Veteran was notified that some of the service treatment records (STRs), specifically mental health treatment records for the period from July 4, 1982 to September 3, 1983 cannot be located and therefore are unavailable for review.  The RO repeatedly made attempts to secure all records.  Because there may be some missing records, VA has a heightened duty to consider the applicability of the benefit-of-the-doubt rule and to assist the Veteran in developing the claim, and to explain the reasons and bases for its decision.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  However, there is no presumption for granting any of the claims.  See Russo v. Brown, 9 Vet. App. 46 (1996).  VA made all appropriate efforts with regard to the Veteran's claims.  The Veteran was also afforded a hearing by a Decision Review Officer which was adequate.  38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  The Veteran has not alleged any notice or development deficiency during the adjudication of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

Service Connection 

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306.  Service connection may also 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 or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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).  Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

The STRs reveal that there were no complaints, findings, treatment, or diagnosis of a psychiatric disease or injury during service.  On the separation examination, the Veteran denied having nervous trouble of any sort and the psychiatric examination was normal.  In the service personnel records, a September 1983 document indicated that the Veteran was being separated for failure to adequately progress in treatment.  A reference to Alcoholics Anonymous was made.  The records also reflect disciplinary action for drug (including cocaine) and alcohol use.

Post-service, records document that the Veteran continued to use drugs and alcohol and be seen for abuse of such.  The Veteran was also diagnosed and treated for depression in the 2000's.  The Veteran was afforded a VA examination to assess if current psychiatric disability is etiologically related to service.  This examination was conducted in February 2016.  The Veteran was diagnosed as having cocaine use disorder, severe, in early full remission; and substance induced depressive disorder (cocaine).  The examiner noted that the Veteran admitted to substance use during service for which he was disciplined.  He was placed in a substance abuse treatment, but did not succeed and was discharged.  Thereafter, he had a history of substance abuse over many years following his military service, including regular alcohol and cannabis use, as well as cocaine use, which the Veteran identified as his drug of choice.  He made multiple attempts at abstinence followed by relapses involving spending thousands of dollars during binges, frequently resulting in remorse and suicidal ideation afterward.  The treatment had been provided by VA beginning in 2002.  The Veteran indicated that his longest period of sobriety prior to 2002 was 6-8 months.  Since that time, he had struggled with periodic relapses usually accompanied by suicidal ideation, though he reported being abstinent for the previous 3 years.  

The examiner provided a medical opinion, noting that the Veteran had a lengthy history of drug abuse and dependency involving cocaine and also accompanying financial and personal problems secondary to his cocaine abuse.  While he had been abstinent for the past 3 years, he still struggled to avoid relapse and reported frequent episodes of dysphoric mood linked to this.  The DSM-5 diagnoses that appeared most appropriate for this Veteran was cocaine use disorder, severe, in early full remission; and substance induced depressive disorder (cocaine).  However, the examiner opined that the diagnoses were less likely than not (less than 50 percent probability) incurred or caused by the veteran's claim that he felt depressed during service before, during and after the time he was receiving substance abuse treatment in service.  The Veteran reported a lengthy history of cocaine abuse and VA treatment records indicated he first sought treatment for this at the Roudebush VA in 2002 (he also had brief inpatient treatment at Fairbanks in 1986), though the exact date of onset of his cocaine use disorder was difficult to state without resorting to speculation.  It was noted in Veteran's service military personnel record that he was chaptered out of the Army related to several different Article 15s, including one for smuggling marijuana into Germany from the United States, for hitting an NOC, and one for being drunk on duty, and he noted he was also disciplined for failure to progress in mandated substance abuse treatment.  However, there were no actual behavioral health or substance abuse treatment records other than a one-page document dated in September 1983 indicating the Veteran was being separated for failure to adequately progress in treatment.  Given the paucity of any other indication of a co-morbid mental health condition while in service, the examiner indicated that it would be speculative to assign the Veteran a diagnosis of depression related to these events, or to opine as to a specific date of onset.  The examiner stated that it was important to note the distinction between the symptom of depression (i.e. a state involving dysphoric mood) and the clinical diagnosis of Major Depression, which included a constellation of symptoms involving multiple areas including sleep, appetite, mood and emotion.  While the Veteran may have experienced a dysphoric mood related to his alcohol abuse and/or pending discharge from the military, it would be speculative to conclude that he would have met criteria for a formal diagnosis of Major Depression at that time.  The Veteran's documented depressive symptoms appeared to be directly the result of cocaine abuse over an extended period of time. A review of the inpatient admissions to VA indicated that his suicidal ideation has been directly related to cocaine binges, the consequences associated with these, and his hopelessness about being able to maintain abstinence from cocaine, which is among the most addictive of illicit substances.  The examiner explained that long term use of cocaine is linked to changes in the brain specifically related to mood regulation, and clinical research indicates that long term depressive symptoms often result from extended use of cocaine during periods of abstinence.  Given these considerations, it appeared more likely than not that the Veteran's depressive symptoms were caused by his ongoing cocaine abuse, both due to the physiological sequelae of using the substance and the life consequences that had resulted for the Veteran from his continued use.

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

In this case, the examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis.  The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).

Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of a veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs.  38 C.F.R. § 3.301 (a).  Drug abuse is 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.  Alcohol abuse and drug abuse, unless they are a secondary result of an organic disease or disability, are considered willful misconduct.  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).  The law prohibits a grant of direct service connection for drug or alcohol abuse on the basis of incurrence or aggravation in the line of duty during service.  Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351 (1990); VAOPGCPREC 2-98 (Feb. 10, 1998), 63 Fed. Reg. 31263 (1998).  However, a veteran may be service connected for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his service-connected disability.  In order to qualify for service connection, the Veteran must establish, by clear medical evidence, that his alcohol or drug abuse disability is secondary to or caused by their primary service-connected disorder, and that it is not due to willful wrongdoing.  Allen v. Principi, 237 F.3d 1368, 1376-77 (Fed. Cir. 2001).

In this case, the STRs do not reflect any complaints, findings, diagnosis of major depressive disorder or any other psychiatric disease or injury.  The examination at discharge was normal and the Veteran specifically denied psychiatric symptoms at that time.  The Board may consider whether the silence of the Veteran in reporting complaints regarding psychiatric symptomatology when he reported other medical complaints constitutes negative evidence.  See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact).  In this case, it does constitute negative evidence.  There is not just a lack of evidence; rather, there is evidence showing normal findings.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see also Dulin v. Mansfield, 250 Fed. Appx. 338, 2007 WL 2914797 (C.A. Fed. Oct. 5, 2007).  

Moreover, the Veteran's currently diagnosed depressive disorder is a substance induced depressive disorder (cocaine).  That is, the depressive disorder is due to the substance abuse, not the opposite.  As noted, service connection for substance abuse is prohibited unless granted on a secondary basis, which is not applicable in this case since the substance abuse is the primary disorder.  

The Board has considered the Veteran's own opinion.  However, as a lay person in the field of medicine, the Veteran does not have the training or expertise in medical matters and this issue involves a medical determination that is too complex to be made based on lay observation alone.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  

Thus, the Veteran's opinion is outweighed by the findings to the contrary by the VA examiner, a medical professional who considered the pertinent evidence of record and found against such a relationship.  See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

Therefore, the Veteran's claim of service connection for substance abuse is barred as a matter of law and a preponderance of the evidence is against the claim of service connection for a psychiatric disability.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  


ORDER

Service connection for substance abuse including drug and alcohol abuse is denied.

Service connection for a psychiatric disability is denied.




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs