Citation Nr: 1800356 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-24 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for substance abuse to include as due to service-connected major depressive disorder. ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active service from December 1992 to February 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In April 2015, the Board requested a Veterans' Health Administration (VHA) advisory opinion (VHA opinion) with regard to the Veteran's claim for service connection for substance abuse as secondary to his service-connected depression. See 38 U.S.C.A. § 7109 (West 2014); 38 C.F.R. § 20.901(a) (2016). The resulting VHA opinion was received by the Board in May 2015 and sent to the Veteran in August 2015. The Board acknowledges that a claim for a total disability rating based on individual unemployability (TDIU) is considered part and parcel of an increased rating claim on appeal if the record suggests the Veteran may be precluded from substantially gainful employment because of his service-connected disability or disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in the instant case, entitlement for a TDIU has been in effect since December 17, 2003. Thus, the issue of entitlement to a TDIU will not be further discussed. The Board adjudicated this appeal in a June 2015 decision. The Veteran appealed the Board's denial of entitlement to service connection for substance abuse, as secondary to his service-connected depression, to the Court. In February 2017 the Court granted a joint motion for partial remand (JMPR) of the Veteran and the Secretary of Veterans Affairs, vacated the July 2016 Board decision insofar as it denied entitlement to service connection for substance abuse, as secondary to his service-connected depression, and remanded the case to the Board for action consistent with the terms of the JPMR. In July 2017, the Board requested another VHA opinion with regard to the Veteran's claim for service connection for substance abuse as secondary to his service-connected depression. See 38 U.S.C.A. § 7109; 38 C.F.R. § 20.901(a). The resulting VHA opinion was received by the Board in August 2017 and sent to the Veteran that same month. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Substance abuse has not been caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for substance abuse, to include as secondary to service-connected disability, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017). Direct service connection for a disability may be granted only when a disability was not the result of the Veteran's abuse of alcohol or drugs. See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301. Although a substance abuse disability cannot be service connected on the basis of its incurrence or aggravation in service, the law does not preclude a Veteran from receiving compensation for a substance abuse disability acquired as secondary to, or as a symptom of, a Veteran's service-connected disability. Pursuant to Allen v. Principi, a claimant is only entitled to secondary service connection if the claimant can "adequately establish that the alcohol or drug abuse disability is secondary to or is caused by a primary service-connected disorder." Such benefit would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. The Veteran contends that he abused alcohol and drugs because of pain associated with his service-connected orthopedic disabilities and/or as due to his major depressive disorder or alternatively that these service connected disabilities aggravated his substance abuse. The Veteran was provided with a VA examination in August 2012. The examiner took a comprehensive history from the Veteran, which included his reports that substance abuse began while he was fairly young, predating active duty. He stopped using drugs and alcohol prior to entrance into active duty but, following his discharge from service for a back injury, he felt down and used again. The examiner acknowledged that it was arguable that he was disappointed with himself for not completing basic training and used drugs because he was depressed, but that it was also possible that he simply returned to the behavior that was familiar. The Veteran reported that depression was prompted by his back injury and dismissal from service. However, his back injury and depression occurred subsequent to an already significant drug problem. As such, the examiner found no rationale for secondary service connection for a substance abuse problem that predated his service-connected depression. In addition, the examiner opined that his substance abuse was not aggravated by his service-connected depression. At the time of the examination, the Veteran reported that he had 13 years of sobriety, suggesting that there was no longer an active addiction. The Veteran was provided with another VA examination in January 2013. The examiner found that the Veteran's alcohol and cocaine abuse were in remission and not likely causing significant clinical symptoms. The examiner noted that aside from period of approximately one month in the fall of 2012, the Veteran had been sober for more than a decade. The May 2015 VHA opinion was sought to obtain opinions as to whether the Veteran's substance abuse was caused or aggravated by the pain associated with his service-connected orthopedic disabilities, which included a low back disability, right and left knee instability, and degenerative joint disease, or by his service-connected depression. The examiner noted that the Veteran's alcohol and cocaine use disorders were both in sustained remission. With regard to the relationship between his substance abuse disorder and pain associated with his orthopedic disabilities, she stated that medical literature did not support the claim that pain from orthopedic disabilities would cause substance abuse or aggravate it as to lead to a permanent increase. She noted psychiatric literature on pain and addiction indicated that there was no therapeutic indication for alcohol or cocaine use in the treatment of chronic pain, but that untreated pain had been cited as a significant risk factor for relapse. The examiner therefore opined that while pain may make it more likely for someone to relapse on substances just as marital stress might, neither risk factor would cause substance abuse. She found that the only situation in which substance abuse could be caused or aggravated by a pain disorder would be when the chronic pain must be treated by opioid medication and the opioid medication was the substance of abuse, which was not the case for the Veteran. With regard to whether the Veteran's substance abuse was secondary to his service-connected major depressive disorder, the examiner stated medical literature did not support a claim that major depressive disorder would cause substance abuse or would lead to a permanent increased in a substance abuse disorder, as these were separate comorbid diagnostic entities. She noted that the presence of depression was a risk factor for relapse of a substance use disorder but that there was no diagnostic entity of a substance use disorder caused by a major depressive disorder. In addition, she noted that there was no evidence that depression could permanently alter the lifetime course of a substance use disorder itself. Further evidence of them being separate entities was the fact that major depressive disorder continued to be present and treated in the Veteran, while his substance abuse disorder had been in sustained remission. She opined that, if the Veteran's substance abuse was caused by his depression then continuing depression should correlate with continuing substance abuse. The fact that these disorders had different courses over time supported their distinction as two different illnesses. In regard to the various inconsistent medical findings, the VHA examiner opined that the Veteran's relapse with alcohol and cocaine shortly after his separation from service was a temporary worsening and not a worsening of the clinical course and character of the of the substance abuse as evidenced by his eventual sustained remission in the presence of continuing depressive symptoms. A December 2010 treatment note reported that the Veteran became depressed when he stopped abusing substances. The examiner noted that medical literature clearly describes crash or withdrawal induced elevations in depressive symptoms especially in alcohol and cocaine use, and these depressive symptoms could continue for several weeks. The Veteran submitted opinions from a private provider from the Post Traumatic Stress Center, LLC, dated in October 2015 and March 2016. The examiner stated that the Veteran began using alcohol and cocaine heavily in 1992 and stopped using in 1999. He was sober until October 2013 when he had a relapse, and had been sober off and on since that time. The examiner found that the Veteran had been suffering from chronic substance abuse disorder involving alcohol and cocaine since he returned from the service. He opined that the Veteran's relapses were clearly triggered by a spike in his major depressive disorder, and noted that the VHA examiner's medical opinion was in error in stating that "...major depressive symptoms have continued in this patient but he has remained abstinent of drugs and alcohol for years." He found that the VHA examiner did not recognize that the Veteran's depressive symptoms waxed and waned, and that when there was a significant rise in them, he suffered relapses. The examiner opined that it was at least as likely as not that the Veteran's service-connected major depressive disorder aggravated his substance abuse. The Veteran was provided with a VA examination in April 2016. It was noted that the Veteran had become addicted to substances prior to his military service and had achieved two years of sobriety prior to enlistment. He relapsed on substances within one month of discharge, which also occurred during his first signs of depression. The examiner opined that the Veteran relapsed when his depression was more severe and not in remission and that, therefore, his substance use was related to his depressive episodes. When his depression was considered in remission, his substance abuse was considered to be in remission, as well. The examiner noted that the general medical community accepted that addiction was a lifelong disease in that individuals who had addiction histories were likely to struggle with times of intense cravings and were at most risk for relapses when there were psychosocial stressors and the individual's other mental health conditions were not stable. While the major depressive disorder was linked to his substance use and may lead to relapse on substances when not well controlled, his substance use was not aggravated beyond natural progression as there was no evidence to suggest major depressive disorder had led to more severe substance use. The Veteran submitted a private medical opinion in May 2016. The private examiner quoted extensively to several medical treatises and studies regarding substance abuse and psychiatric disorders. Several of these studies concluded that individuals with depression and pain self-medicated to deal with these disorders. The examiner noted that clinical research reflected that substance abuse and depression and substance abuse and chronic pain were frequently seen together, and that, typically, the substance abuse was to relieve or mask symptoms of pain and/or depression. The examiner found that the Veteran used substances to relieve his service connected physical pain and his service connected psychological pain. He also stated that research clearly showed that there was no "natural progression" of a substance use disorder. The examiner compared the Veteran's social and occupational impairment before and after service, and concluded that it was at least as likely as not that the Veteran should be rated at 70 percent for his level of disability due to substance use disorder. The examiner opined that the Veteran's substance use disorder of alcohol use and cocaine use was at least as likely as not (50 percent or greater probability) "incurred in or caused by the verified service connected depression and back injury." The Veteran was provided with VA examination in March 2017 in connection with claims not appeal at this time. The examiner specifically noted that he was not providing an opinion with regard to whether the Veteran's substance abuse was aggravated by his service-connected depression. Nevertheless, this examination report is significant in that it reflects that Veteran's reports that, other than a brief relapse in October 2016 with the use of cocaine, the Veteran denied any substance abuse since his April 2016 VA examination. The Board sought another VHA opinion in July 2017. Such opinion was provided in August 2017. The examiner opined that it was less likely as not that the Veteran's substance abuse had been caused by his service-connected disabilities, including dealing with pain from his orthopedic disabilities and psychiatric symptoms associated with his service-connected depression. The examiner provided the rationale that the Veteran's substance abuse predated service and therefore his substance abuse could not be caused by his service-connected disability. With regard to aggravation, the examiner opined that it was less likely as not that the Veteran's substance abuse had been aggravated by his service-connected disabilities, to include his attempts to self-medicate to deal with pain from his orthopedic disabilities and psychiatric symptoms associated with his service-connected depression. The examiner noted that the term "aggravation" meant that there would have to be an increase in the severity of a condition beyond the natural clinical course and character of the condition due to the service-connected disability. He found that the record was clear that the Veteran had at least a decade-long addiction to cocaine, and had been treated for substance abuse just two years prior to his military service. When he entered service, his substance abuse disorder was in remission, but following his discharge, his substance abuse disorder re-emerged. He was treated in 1995, 1996, 1997, 1999, 2012, 2014, and 2016. He had several years of abstinence in between relapses. The examiner opined that the fact that his substance abuse disorder reappeared following his discharge from the military could mean that it was following a natural progression. He noted that, according to the National Institute on Drug Abuse, addiction was defined as a chronic, relapsing brain disease that is characterized by compulsive drug seeking and use, despite harmful consequences. In addition, the American Society of Addiction Medicine noted that "Frontal lobe morphology, conductivity, and function are still in the process of maturation during adolescence and young adulthood, and early exposure to substance use us another significant factor in the development of addition." The examiner noted that it was unclear exactly when the Veteran began drinking alcohol and abusing substances, but that it was ultimately a moot point, as all of the records reflected that he began using substances during that period of maturation which, according to the literature noted above, was a "significant factor in the development of addiction." The examiner found that the Veteran began using substances at an early and influential age when the possibility of progressive addiction was likely. The examiner opined that the Veteran's addiction was a separate disorder, not caused by his depression. The VHA examiner was asked to reconcile the conflicting opinions of record. In this regard, he found that, while the May 2015 VHA examiner only referred to the therapeutic use of substances in the treatment of chronic pain, it was reasonable to infer that the word "therapeutic" suggested a remediation of a health problem, ergo "self-medicating" or to feel better. Therefore, he found that the May 2015 VHA examiner's opinion was adequate. With regard to the October 2015 private opinion, which was is support of the Veteran's claim, the VHA examiner found that there was no evidence in the record to show that the Veteran had "spikes" of depression coinciding with his relapses in 1998, 2013, and 2014. Review of the record did not reveal any documentation of worsening of depression prior to relapse. With regard to the March 2016 private opinion, also in support of the Veteran's claim, the VHA examiner found that the rationale provide by the private examiner was based solely on the Veteran's statements, which were not in agreement with the record of evidence. The examiner also reviewed the April 2016 VA opinion. The VHA examiner found this opinion to be valid and consistent with the current research, as the April 2016 examiner intimated that the Veteran's substance abuse and psychiatric disorder "covary" but were not causal. With regard to the May 2016 VA opinion, the VHA examiner stated that while the Veteran's substance abuse re-emerged after his military discharge, it was also the fact that the Veteran had a decade long history of cocaine addiction prior to his military service. The examiner opined that it could be said that he merely resumed his prior behavior and pattern of use. He found that the May 2016 VA examiner ignored the pre-military history of the Veteran's cocaine abuse. Further, the VHA examiner noted that, while the May 2016 VA examiner compared the Veteran's social and occupational functioning pre- and post-service to suggest that the Veteran's substance abuse affected him more severely after service, the Veteran's post-service functioning was almost identical to his pre-service functioning, in that it was replete with failed marriages, repeated periods of unemployment, periods of isolation and despair, homelessness and living in a shelter, relapses of alcohol and cocaine use, and depression. Further, the VHA examiner found that the May 2016 VA examiner argued against a presumption of the natural progression of the substance abuse disorder without rationale. In making its decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this case, there are several conflicting opinions of record. For the following reasons, the Board finds that the October 2015 and March 2016 private opinions are not probative evidence. Although the examiner who authored these opinions noted that spikes in the Veteran's depression led to relapse, he did not support this statement with any rationale. The examiner simply describes "spikes in depression" and "relapse" as happening at the same time, but does not describe how this demonstrates that the spike in depression actually aggravates the substance abuse. In other words, the examiner describes temporal correlation but not causation or aggravation. Moreover, more importantly, the examiner does not identify any evidence of record that shows periods of increased depressive symptomatology and increased substance abuse. This is particularly problematic as the record reflects the Veteran has long-standing depression which continues (and has not shown to have clinically improved) but has had sustained remission of substance abuse-indicating that the substance abuse operates independently of the service-connected depression and that over the period where the depression has gotten worse, the substance abuse has not gotten worse and has been in sustained remission except for brief periods of relapse. Specifically, the Veteran's depression has increased in severity, as indicated by being awarded an increased rating in 2011, but the Veteran has had only brief periods of substance abuse in the last 18 years, and has otherwise been sober during this period. Therefore, the evidence does not tend to show that at times when the Veteran's depression "spikes" this aggravates his substance abuse. Again, the record shows that since 1999, the Veteran has abstained from drug and alcohol abuse with the exception of brief relapses in 2012/2013 and 2016. Moreover, as noted by the 2015 VHA physician, a December 2010 treatment note reported that the Veteran became depressed when he stopped abusing substances. The 2015 examiner noted that medical literature clearly describes crash or withdrawal-induced elevations in depressive symptoms, especially in alcohol and cocaine use, and these depressive symptoms could continue for several weeks. This suggests that the increase in symptoms from the nonservice-connected substance abuse disorder potentially aggravated the Veteran's already service-connected psychiatric disorder as opposed to the other way around. Again, the October 2015 and March 2016 private examiner did not provide any rationale for how he concluded it was the service-connected depression that caused an increase in the substance abuse when the evidence of record demonstrated ongoing and increasing depressive symptoms over the years but substance abuse predominantly in remission, nor did he address the evidence of record showing that medical literature notes that withdrawal from substance abuse can cause elevations in depression. The Board finds that the April 2016 VA opinion is not probative as it is internally inconsistent and not supported by the evidence of record. Initially the examiner notes that the Veteran relapsed when his depression was more severe and not in remission and that, therefore, his substance use was related to his depressive episodes. He further noted that when his depression was considered in remission, his substance abuse was considered to be in remission, as well. He then concludes his opinion by saying there is no evidence to suggest the depressive disorder led to more severe substance abuse. These statements appear to be in conflict, rendering the opinion internally inconsistent. Moreover, to the extent the examiner appears to support a possible finding of aggravation of the substance abuse disorder by the service-connected psychiatric disability by stating that when the Veteran's depression was considered in remission, his substance abuse was considered in remission, this statement is again not supported by the record. The Veteran was initially awarded service connection in 2000 for depression and assigned a 50 percent disability rating and was assigned a higher 70 percent disability rating in 2011, reflecting significant psychiatric symptoms that became more severe whereas the evidence reflects that during this same time period, from 1999 to 2017, the Veteran had a sustained period of remission of alcohol and drug abuse with only brief periods of relapse in 2012/2013 and October 2016. Thus, the evidence of record does not support he examiner's observation that when the Veteran's depression is in remission, so is his substance abuse disorder. In fact, over a significant period of time, the evidence reflects the Veteran's substance abuse disorder was in sustained remission with only brief periods of relapse whereas the depression was actually steadily worsening - reflecting that the Veteran's substance abuse symptoms did not in fact increase when his depression symptoms worsened. A medical opinion or examination is only adequate where it is based upon consideration of the appellant's prior medical history and examinations. Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); Ardison v. Brown, 6 Vet.App. 405, 407 (1994). With regard to the May 2016 private opinion, the Board finds that, while the examiner opined that the Veteran's substance abuse was aggravated by his service-connected depression/pain issues, he provided no real rationale for his opinion. Instead, he referred to the Veteran's condition prior to service and following service, which would relate to establishing service connection on a direct basis-a theory of entitlement not for consideration for substance abuse disorders. To support his opinion that the Veteran's substance abuse was aggravated by his service-connected depression, the examiner referred to medical treatises and studies which showed that psychiatric and pain conditions can exacerbate substance abuse issues. However, he provided no rationale for his conclusion that this Veteran's service-connected disabilities aggravated his substance abuse. In particular, he did not explain how he reached the conclusion that the Veteran's service-connected psychiatric and orthopedic disabilities aggravated his substance abuse disorder, when the evidence demonstrates that since being service-connected for depression and orthopedic disabilities, the Veteran has actually had a sustained period of abstinence from drug and alcohol abuse for an eighteen year period (from 1999 to 2017) with the exception of brief periods of relapse in 2012/2013 and October 2016. The Board finds that the May 2015 VHA opinion is not adequate, for the following reasons. The VHA examiner's opinion addressed the potential therapeutic use of alcohol and substances in dealing with pain. However, in this case, the Veteran was using alcohol and illicit drugs to self-medicate. While the January 2017 VHA examiner supported this opinion, noting that the term "therapeutic use" applied to the Veteran's case in that he was attempting to remediate his pain to feel better, the Board finds that the probative value of this opinion is diminished by the 2015 VHA examiner's failure to specifically address the Veteran's attempts to self-medicate to deal with his pain. In any event, the opinion did not weigh in favor of the Veteran's claim as it indicated there was no therapeutic indication for alcohol or cocaine use in the treatment of chronic pain. Overall, the Board finds that the most probative evidence of record is the January 2017 VHA opinion. This examiner thoroughly reviewed and addressed the Veteran's history of depression and substance abuse, and concluded that his substance abuse was not caused by or aggravated by his service-connected psychiatric disability. The examiner provided a rationale for each of his findings based on the evidence of record medical findings in literature pertinent to this case. As such, this opinion is accorded great probative value. See Stefl v. Nicholson, 21Vet. App. 120, 124 (2007) (holding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). In the JMPR, the parties noted that the Board rejected the favorable May 2016 private medical opinion, concluding that the salient issue was not whether Veteran's substance abuse increased after his military discharge, but instead whether it was permanently increased in severity by his service-connected depression. The parties agreed that the Board did not adequately discuss the language of the pertinent VA regulation, 38 C.F.R. § 3.310(b), which states that any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. It was noted that this regulation does not contain the stipulation that the increase be permanent as the Board contended in its decision, and that this reasoning was inconsistent with VA regulations. However, the salient issue in this case does not turn on whether the increase in the Veteran's substance abuse is permanent or temporary because in this case, the preponderance of the evidence weighs against a finding that the Veteran's service-connected disabilities cause or aggravate the Veteran's substance abuse disorder. As noted above, the examiner's conclusion that the Veteran's substance abuse increased after his military discharge is irrelevant to establishing entitlement to service connection for substance abuse disorder because this increase (assuming it is supported by evidence of record, which is not clear) would only demonstrate that military service directly increased the Veteran's substance abuse disorder, and entitlement to service connection for a substance abuse disorder cannot be directly service connected, but can only be established if it is secondary to an already service-connected disability. The Veteran contends that his substance abuse is secondary to his service-connected disabilities, including depression and orthopedic disabilities. However, the Board finds that the question regarding the potential relationship between his substance abuse and any service-connected disability to be complex in nature, as evidenced by the multiple medical opinions in this case. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). The record does not reflect that the Veteran has such specialized knowledge, training or experience, so his contentions regarding etiology in this case are not competent evidence. As the preponderance of evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied with respect to the Veteran's secondary service connection claim. ORDER Service connection for a substance abuse disorder, to include as due to service-connected disability, is denied. ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs