Citation Nr: 1752278	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  12-12 729	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder, depression, and alcohol abuse.

2.  Entitlement to an initial compensable disability rating for sinusitis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

E. Ko, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1990 to February 1991 and from May 2007 to June 2008.  He also served at times with the National Guard.    

This matter comes before the Board of Veterans' Appeals (Board) on appeal from the September and November 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.  The Board remanded this case in January 2015 for further development.

The Veteran testified at a February 2013 videoconference hearing before the undersigned.  A copy of the transcript is of record.


FINDINGS OF FACT

1.  An acquired psychiatric disorder is not related to the Veteran's active duty service.

2.  The Veteran's sinusitis has not been manifested by one or two incapacitating episodes requiring prolonged antibiotic treatment, or by three or more non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting.



CONCLUSIONS OF LAW

1.  An acquired psychiatric disorder, to include posttraumatic stress disorder, depression, and alcohol abuse was not incurred or aggravated inservice, a psychosis may not be presumed to have been so incurred, and such a disorder is not caused or aggravated by a service connected disorder.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.1, 3.102, 3.301(c), 3.307, 3.309, 3.310 (2017).

2.  The criteria for an initial compensable disability rating for sinusitis have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.97, Diagnostic Code 6512 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Assist and Notify

With respect to the claims decided, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  Further, the Board finds that there has been substantial compliance with its January 2015 remand directives.  See Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

The January 2015 remand directed that the RO schedule the Veteran for a VA examination to address the nature and etiology of any of diagnosed psychiatric disorders and to determine the current severity of his sinusitis.  In a September 2015 letter VA noted its attempts to contact the Veteran to schedule the examinations and informed him that the examinations would be cancelled if he did not respond.  The Veteran did not respond and the examinations were documented as failures to report per 38 C.F.R. § 3.655 (2017).  To date the Veteran has not contacted VA regarding his examinations or provided good cause for his failure to show.  Hence, the Board finds that the RO has substantially complied with its directive to schedule the Veteran for these VA examinations.

Acquired Psychiatric Disorder

Establishing service connection generally requires competent evidence of: (1) a current disability; (2) an in-service disease, injury, or event; and (3) a link between the current disability and the in-service event.  38 C.F.R. § 3.303(a).  

Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310.  In such a case secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. Id.  

Service connection for a psychosis may be presumed to have been incurred inservice if the disorder was compensably disabling within a year of the Veteran's separation from active duty. 38 C.F.R. §§ 3.307, 3.309.

The preponderance of the evidence shows that the Veteran is currently diagnosed with alcohol abuse as evidenced by an October 2010 VA examination.  That examiner also diagnosed a mood disorder, not otherwise specified, as well as rule out alcohol induced mood disorder.  The examiner found that the diagnostic criteria for posttraumatic stress disorder were not met while noting the Veteran's in-service combat stressor.  The October 2010 examiner also found that the Veteran's depressed mood was unrelated to his military service, but rather was due to then current life stressors.  In diagnosing the Veteran with alcohol abuse, the examiner could not diagnose a mood disorder independent of alcohol abuse because alcohol had a significant impact on his mood, and the extent to which alcohol use accounted for mood disturbance was unknown.  Again, the examiner did not link any diagnosed psychiatric disorder, to include a mood disorder, to the appellant's active duty service.

Alcohol abuse is 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.  38 C.F.R. § 3.301.  Alcohol abuse, unless it is a secondary result of an organic disease or disability, is considered to be willful misconduct.  38 C.F.R. §§ 3.301(c)(2), (3). 

The law prohibits direct service connection for 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 alcohol abuse acquired secondary to, or as a symptom of, a service-connected disability.  In order to qualify for secondary service connection, the evidence must show that alcohol abuse is secondary to or is caused by a primary service-connected disorder, and that it is not due to willful wrongdoing.  See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001).    

The Veteran is currently service connected for left ear tinnitus and sinusitis.  He does not assert that alcohol abuse is due to or aggravated by these service-connected disabilities.  Additionally, the record does not indicate a link between his alcohol abuse and these service-connected disabilities.  Hence, service connection for the Veteran's alcohol abuse is not warranted.  

Should the Veteran be able to secure well-reasoned medical opinion evidence showing that he suffers from an acquired psychiatric disorder due to service, and that that alcohol abuse is secondary to, or a symptom of that disability or any other diagnosed disorder shown to be related to his military service, the appellant should submit that evidence to the RO.  The evidence would be reviewed to see whether it is sufficient to reopen the claim and ultimately whether it is sufficient to allow the claim.  38 U.S.C. §§ 1110, 5108.  At this time, however, the preponderance of the evidence is against the claim and entitlement to service connection for alcohol abuse must be denied.  

In reaching this conclusion, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53 - 56 (1990).   

Sinusitis

The Veteran seeks an initial compensable disability rating for his sinusitis, which has been rated under 38 C.F.R. § 4.97, Diagnostic Code 6512.

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Under the General Rating Formula for Sinusitis (Diagnostic Codes 6510 through 6514), a noncompensable rating is assigned for sinusitis that is detected by x-ray only.  38 C.F.R. § 4.97.  

A 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.  An incapacitating episode of sinusitis is one that requires bed rest and treatment by a physician.  38 C.F.R. § 4.97, Diagnostic Code 6512.

At a June 2010 VA examination the examiner noted no history of hospitalization or surgery for respiratory disease, any occupational impairment, any effects on usual daily activities, or any incapacitating or non-incapacitating episodes of sinusitis since April 2010.  No evidence of sinusitis was noted in a June 2010 imaging exam.  

VA treatment records show that the Veteran has not had at least one incapacitating episode of sinusitis per year or at least three non-incapacitating episodes of sinsusitis per year since April 2010.  The evidence shows no incapacitating episodes of sinusitis since April 2010.  There is evidence showing non-incapacitating episodes of sinusitis once in each of the months of October 2010, February 2012, January 2013, March 2013, and September 2014, but there is no evidence of at least three non-incapacitating episodes within any twelve month period during the appellate term.  

Accordingly, the Board finds that the preponderance of the evidence is against entitlement to a compensable disability rating for sinusitis.  In reaching this conclusion, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53 - 56 (1990).   


ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder, depression, and alcohol abuse is denied.

Entitlement to an initial compensable disability rating for sinusitis is denied.



____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs