Citation Nr: 1802916 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 12-26 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Douglas E. Sullivan, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1986 to June 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. This matter was remanded by the Board in December 2016 for further development. The Veteran's private treatment records and VA examination reports include multiple mental health diagnoses. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has characterized the claim on appeal as entitlement to service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence of record weighs against finding that the Veteran has a current diagnosis of an acquired psychiatric disorder other than substance induced mood disorder. 2. The preponderance of the competent and credible evidence of record indicates the Veteran's substance induced mood disorder resulted from primary alcohol abuse. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 105, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In a May 2017 brief, the Veteran's attorney argued the April 2017 readjudication of this matter by the Agency of Original Jurisdiction (AOJ) was not consistent with the Board's December 2016 remand because the AOJ adjudicated the issue as entitlement to service connection for substance induced mood disorder, although the Board had recharacterized the issue as entitlement to service connection for an acquired psychiatric disorder. The attorney argued this action was significant because the AOJ failed to analyze whether the Veteran has an underlying psychological issue that led to or exacerbated his substance abuse. In the Reasons and Bases section of the April 2017 supplemental statement of the case, the AOJ noted the diagnoses of other mental health conditions, but cited a VA examiner's January 2016 addendum opinion that it is not possible to determine if the Veteran meets the criteria for a mental health diagnosis given his continued abuse and dependence on substances, and that there is no evidence of record the Veteran had a diagnosable mental health condition prior to the start of his substance abuse/dependence. Accordingly, the Board finds the AOJ did analyze whether the Veteran has a psychological issue other than substance induced mood disorder, and therefore there has been substantial compliance with the December 2016 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Legal Criteria A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the Fourth Edition of the DSM (DSM-IV) and replaced them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The amendment does not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Here, the RO certified the Veteran's appeal to the Board in April 2016. Accordingly, this matter is governed by the amended 38 C.F.R. § 4.125 conforming to the DSM-5. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis The Veteran contends he has a current acquired psychiatric disorder that is related to stress and depression he felt due to this mother's illness and death during his active duty service. The Veteran contends his alcohol use and abuse were attempts to self-treat his mental health symptoms. See, e.g., July 2016 videoconference hearing testimony. The Veteran's service personnel records indicate the Veteran was discharged from service due to three alcohol-related incidents between November 1986 and April 1987. See, e.g., June 1987 legal review for administrative discharge; June 1987 recommendation for discharge; May 1987 Letter of Reprimand. In a June 1987 statement regarding the recommendation for discharge, the Veteran reported that during the previous few months he had experienced extreme emotional distress due to family problems. The Veteran reported that during his active duty service he was financially responsible for some of his mother's care as she was divorced and disabled, and she was in very poor health. While stationed overseas the Veteran stated he was contacted on several occasions regarding his mother's health, financial, and medical needs. The Veteran reported that from November to January his mother's suffering had increased drastically, in January she became bedridden, and in mid-February she had died from a heart attack. The Veteran reported he was enrolled in Social Actions for a week when he was notified of his mother's death, and at that time he took on her financial and legal matters as there was no will. The Veteran reported that enduring the loss of the loved one to whom he was closest was a stressful hardship, and that he did not seek help from the appropriate agencies for fear of the stigma of being weak. The Veteran reported that instead, his social drinking increased to where it had become alcohol abuse. The Veteran's service treatment records indicate that in February 1987, the Veteran was referred to the Social Actions program following a report that he had reported to work intoxicated. Another, unofficial incident was noted where the Veteran was seen consuming a bottle of alcohol in the woods. The Veteran presented a very minimal alcohol history, denying black outs, binge drinking, never intoxicated for 48 hours or more, and stated the most he had consumed in a 24 hour period was a 12 pack. The diagnosis was nondependent abuse of alcohol - problem drinker under the ICD-9, and the note stated it was not the DSM-III alcohol abuse series. The Veteran was recommended to enter the local Social Actions program. The Veteran's service treatment records also include a May 1987 narrative summary which stated the Veteran was admitted to the Alcoholism Rehabilitation Center in April 1987 with an admission diagnosis of alcohol abuse, continuous, per the DSM-III. The history of present illness reported, "The patient reports a long, extending history of alcohol consumption, with present level of approximately 4-6 beers four times per week. It has been reported by a female friend and other friends that the patient drinks excessively at times and on one occasion drank four bottles (Mad Dog) in one weekend. The patient reported the following alcohol related problems: habitual inci[d]ence of intoxication, binge drinking, drinking as a means to deal with stressful situations, DUI (87), loss of control and an inability to abstain." The Veteran was reported to have remained sober his entire hospital stay, he completed the program, and derived the maximum benefit from the hospitalization. The Veteran was reported as fit to return to duty, and the discharge diagnosis was alcohol abuse, continuous, per the DSM-III. In a June 1987 legal review regarding the administrative discharge, the staff judge advocate found the Veteran's record revealed a pattern of significant alcohol abuse culminating in two separate incidents of drunk driving. The judge advocate acknowledged the Veteran's reports regarding his mother, that the ill health and loss of a parent can be an extremely difficult situation under the best of circumstances, and that the Veteran's problems were probably exacerbated because of his presence in an overseas location. However, the judge advocate found the Veteran's situation did not justify the misconduct, and that the Veteran should have been able to deal with this problem more appropriately. Following active duty service, the first treatment records available are from Samaritan Recovery in November 2002. At that time, the Veteran's pertinent history included alcohol abuse for 15 to 20 years, and major depression/dysthymia. The Veteran's private treatment records from 2002 to present include a variety of mental health diagnoses along with alcohol use, abuse, or dependence, to include major depression, dysthymia, bipolar disorder, substance induced mood disorder, major depressive disorder, depressive disorder not otherwise specified, schizoaffective disorder, mood disorder NOS, psychosis NOS, anxiety NOS, generalized anxiety disorder, and unspecified episodic mood disorder. The medical evidence of record includes multiple reports that the Veteran's alcohol use and/or abuse began as a teenager. See, e.g., October 2009 Truman Medical Center BHED note; December 2008 Dr. D.W.W. psychological evaluation (in conjunction with the Veteran's claim for Social Security Administration disability benefits); September 2008 Quinco Mental Health Centers initial evaluation; April 2008 Quinco Mental Health Centers diagnostic assessment; April 2007 Cobb Outpatient Services treatment record; November 2005 Cobb County Community Services Board Outpatient Mental Health Clinic stabilization unit note; September 2005 Cobb County Community Services Board Outpatient Mental Health Clinic note. Upon a May 2011 VA examination, the examiner diagnosed substance induced mood disorder, and opined it is at least as likely as not that the Veteran's substance abuse was related to his history of bereavement starting in 1986 [sic] when his mother passed away, because as a result the Veteran began to self-medicate in order to alleviate his mental health symptoms which resulted in his prolonged substance abuse, which resulted in his substance induced mood disorder. In a June 2012 mental health questionnaire and opinion, Dr. J.H.K. stated the Veteran's current diagnoses included major depression and alcohol dependence, and opined that both diagnoses were incurred during and aggravated by the Veteran's service. Dr. J.H.K. stated the Veteran did not drink alcohol until on duty according to the Veteran and his wife, the Veteran's mother died while the Veteran was on active duty, and the Veteran reported he requested but did not receive mental health counseling. Dr. J.H.K. also noted the Veteran's reports of auditory hallucinations and paranoid thoughts, and that the Veteran had not used alcohol in three months. In an October 2015 VA medical opinion, the VA examiner stated that the existing medical evidence provided sufficient information, and an examination of the Veteran would likely provide no additional relevant evidence. The October 2015 VA examiner only referred to the substance induced mood disorder diagnosis. The October 2015 VA examiner stated, "It has been clearly stated that the Veteran had issues with alcohol abuse dating back to before he joined the [service]. It is stated in a medical note that he reported problems abstaining from alcohol prior to the instances that le[d] to his inpatient substance use treatment [during service]. It is a fact that his mother died while he was on active duty. His mother's death occurred after he had been referred for substance abuse/dependence treatment." The examiner further noted the Veteran had difficulty maintaining sobriety for several decades after his discharge from active duty service. The October 2015 VA examiner opined, "It is more likely than not that the Veteran's mood disorder is a secondary byproduct of his substance abuse. It is more likely than not that his substance use was briefly exacerbated by his mother's death; however, there is no evidence that a service[-]related condition or event caused the Veteran to abuse alcohol." In a January 2016 addendum opinion, the October 2015 VA examiner opined the Veteran's current mental disorder, identified as substance induced mood disorder, is a continuation of alcohol abuse which began prior to the Veteran's military service, noting the Veteran's reports of using alcohol as a teenager prior to his entrance to active duty service, and his excessive alcohol intake and abuse leading to a referral for substance abuse treatment prior to the death of his mother. The VA examiner also noted the Veteran's diagnoses including bipolar disorder, dysthymia, and major depressive disorder, but stated it was not possible to determine if the Veteran meets the criteria for a mental health diagnosis given his continued abuse and dependence on substances, including alcohol, which is why the October 2011 VA examiner diagnosed substance induced mood disorder, and she opined this is an appropriate diagnosis. The VA examiner further stated there was no evidence from the medical record that the Veteran had a diagnosable mental health condition prior to the start of his substance abuse/dependence. The Board finds the preponderance of the competent and credible evidence of record weighs against finding the Veteran has a current diagnosis of an acquired psychiatric disorder other than substance induced mood disorder. First, although Dr. J.H.K. opined the Veteran has experienced major depression since his active duty service, the Board affords this opinion less probative value because Dr. J.H.K. based his opinion in part on inaccurate facts. Dr. J.H.K. stated the Veteran did not begin drinking until active duty, and that the Veteran had requested mental health counseling during service but did not receive such. See also July 2016 videoconference hearing testimony. However, as discussed above, the evidence of record indicates the Veteran began drinking as a teenager, and the Veteran himself stated in his June 1987 statement that he had not sought help in service regarding his mother's illness or death. Although the Veteran's private treatment records contain a variety of mental health diagnoses, and indicate the Veteran experienced some mental health symptoms during his brief periods of sobriety, they also indicate the Veteran has continued to struggle with alcohol use and/or abuse throughout the appeal period. In the October 2015 opinion, the VA examiner indicated she had reviewed the evidentiary record. Based upon her review of the entire evidentiary record, the VA examiner opined in January 2016 that the Veteran's continued alcohol abuse and dependence made it impossible to determine if the Veteran met the diagnostic criteria for a mental health diagnosis, and that there is no evidence of record that the Veteran had a diagnosable mental health condition prior to the start of his substance abuse/dependence. Because her opinions were based upon a review of the entire evidence of record, to include the reported symptoms and history to and the findings of a variety of mental health providers throughout the appeal period, the Board affords the most probative value to the October 2015 VA examiner's January 2016 addendum opinion. During the July 2016 hearing before the Board, the Veteran's attorney argued the October 2015 VA examiner's opinion should be afforded little weight because the VA examiner failed to account for the Veteran's periods of sobriety and the Veteran's diagnoses other than substance induced mood disorder. However, as discussed above, the VA examiner did address the other diagnoses of record in the January 2016 addendum opinion. Regarding the Veteran's periods of sobriety, the Board finds that because the VA examiner indicated in the October 2015 opinion that the entire evidentiary record was reviewed, this indicates she did review and consider the evidence of record regarding the Veteran's mental health symptoms during his periods of sobriety before ultimately reaching the conclusion that it was not possible to confirm a diagnosis other than substance induced mood disorder due to the Veteran's continued alcohol abuse. Further, private treatment records have been associated with the evidentiary record which are dated after the January 2016 addendum opinion. However, the Board finds these records show the Veteran continues to struggle with alcohol use and/or abuse, do not reflect more than minor periods of sobriety, and discuss depressive symptoms in the context of the Veteran's alcohol use. See, e.g., March 2017 Atlanta Psychiatry and Neurology treatment note; August 2016 Atlanta Behavioral Care letter; May 2016 Atlanta Psychiatry and Neurology treatment note; March 2016 Wellstar Cobb Hospital treatment record. Accordingly, the Board finds these records are consistent with the medical records reviewed by the VA examiner in rendering the January 2016 opinion. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the Board finds the criteria for entitlement to service connection for an acquired psychiatric disorder other than substance induced mood disorder have not been met. 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167. Next, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.1(m). For this purpose, 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. 38 C.F.R. § 3.301(d). In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit explained, "[T]he best interpretation of the statute [38 U.S.C. § 1110] is that it precludes compensation only in two situations: 1) for primary alcohol abuse disabilities; and 2) for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse. By 'primary,' we mean an alcohol abuse disability arising during service from voluntary and willful drinking to excess." Id. at 1376. The limited exception to this doctrine is when there is clear medical evidence establishing that alcohol or drug abuse was acquired as secondary to a service-connected disability, itself not due to willful misconduct. Id. Here, the Board finds service connection cannot be established for the diagnosed substance induced mood disorder because the preponderance of the competent and credible evidence of record indicates the diagnosis results from the Veteran's primary alcohol abuse. The Veteran's service treatment and service personnel records reflect the extent of the Veteran's alcohol use and abuse during active duty service, as discussed above. The May 2011 VA examiner and Dr. J.H.K. opined that the Veteran's drinking began or increased in service due his mother's illness and death. However, both the May 2011 and October 2015 VA examiners opined that the Veteran's alcohol use or abuse caused the substance induced mood disorder. Accordingly, the Board finds the preponderance of the competent and credible evidence of record indicates the Veteran's substance induced mood disorder resulted from his primary alcohol abuse, and therefore service connection cannot be established. Finally, the Veteran's treatment records from Atlanta Psychiatry and Neurology indicate that beginning in August 2016, his treating providers rendered a new diagnosis under the DSM-5 of alcohol-induced bipolar and related disorder. The Board finds that as the diagnosis indicates it results from alcohol use, service connection cannot be established for this diagnosis for the reasons discussed above. For the foregoing reasons, the Board must conclude that the preponderance of the evidence is against the claim of entitlement to service connection for an acquired psychiatric disorder. The benefit of the doubt doctrine is therefore not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs