Citation Nr: 1806177 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 96-07 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected bilateral foot calluses, bilateral ankle arthritis, the residuals of a head trauma, and post-traumatic headaches. REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty for training from May 1977 to August 1977 and active duty from February 1979 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In February 2014, the Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO. A transcript of the hearing has been associated with the record. In June 2005, the Board, in part, remanded the claims of entitlement to service connection for a psychiatric disorder. In August 2008, the Board denied the Veteran's claim of entitlement to service connection for a psychiatric disorder. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In September 2009, the Court granted a Joint Motion for Remand (JMR) filed by the parties and vacated and remanded the Board's August 2008 decision. In April 2010, the Board remanded the claim of entitlement to service connection for a psychiatric disorder again for further development. In August 2014, October 2016, and August 2017 this claim was before the Board for adjudication. It was again remanded for further development. In a January 2013 submission, the Veteran revoked his attorney representation. This was acknowledged in a February 2015 letter to the Veteran from the RO. Later that same month, the Veteran submitted a power of attorney filled out for that same attorney. However, that form was not signed by the attorney. Accordingly, in a September 2016 letter, the Veteran was notified that if he did not send in a properly filled out form for an attorney, agent, or veterans service organization, the Board would presume he was proceeding on his own, unrepresented. That same month, the Veteran responded that he would like to proceed without representation. In December 2016, VA received an updated 21-22a Appointment of Individual as Claimant's Representative form, appointing the above-named attorney as the Veteran's representative. Last, the Board notes that the Veteran has perfected appeals of entitlement to earlier effective dates for the grant of a separate evaluation of 50 percent for post-traumatic headaches, the grant of a separate evaluation of 10 percent for residuals of head trauma, and the grant of a TDIU. However, the Veteran has requested a Board hearing for these appeals, and these issues are being separately developed. These issues will thus not be addressed herein. FINDINGS OF FACT 1. The probative evidence of record demonstrates that the Veteran's psychiatric diagnoses include polysubstance abuse disorders but no other psychiatric disorder. 2. The Veteran's substance abuse disorder is not proximately due to or the result of a service-connected disability. CONCLUSION OF LAW Service connection for a psychiatric disorder, to include substance abuse as secondary to a service-connected disorder, is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.303, 3.310 (2017); Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duty to notify was satisfied by letters dated in September 2010 and September 2014. See 38 U.S.C. §§ 5102, 5103, 5103A (2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The September 2010 letter was issued in compliance with the Court's order granting the September 2009 JMR and the Board's April 2010 remand. The September 2014 letter was provided in compliance with the Board's August 2014 remand. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as all identified and available post-service medical records, including private treatment records and records from the Social Security Administration, are associated with the claims file. The Veteran has not identified any additional available, outstanding records pertinent to his claimed psychiatric disorder. The Veteran was afforded VA examinations and opinions in April 2006, August and October 2012, January, May, and September 2015, and February and August 2017. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations, when taken together, are adequate to decide the case. The medical opinions are predicated on a full reading of the available service treatment records contained in the Veteran's claims file, consider all of the pertinent evidence of record, and are supported with a complete rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board also finds that there has been compliance with the prior August 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Service Connection The Veteran claims he developed a psychiatric disorder as a result of his service-connected disabilities. The medical evidence of record supports a diagnosis of polysubstance abuse. Thus far, the Veteran's claim has been denied because compensation is not awarded either for a primary drug abuse disability incurred during service or for any secondary disability that resulted from a primary drug abuse disability due to willful misconduct. The Board has considered all the evidence of record and finds that service connection for a psychiatric disorder is not warranted. Legal Principles Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2017). Compensation for primary alcohol abuse disorders and secondary disorders that result from primary alcohol abuse is precluded. 38 U.S.C.A. §§ 105, 1110 (West 2014); Allen v. Principi, 237 F.3d at 1376. However, service connection is warranted when drug or alcohol abuse results secondarily from a service-connected disability, but compensation should only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by the veteran's primary service-connected disability." Allen, 237 F.3d at 1371, 1381. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. The Board may discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Factual History VA treatment records around the time the veteran filed his claim for service connection for depression in July 1999 show various psychiatric diagnoses. Specifically, they show an initial diagnosis of an adjustment disorder with depressed mood and then a dysthymic disorder with superimposed major depression. The veteran was placed on Prozac in August 1999. Afterward, the treatment records indicate a diagnosis of major depression in remission. Recent treatment records from VA document a frequent history for polysubstance abuse. No active psychiatric disorders other substance use are diagnosed. A VA hospital summary from March 2001 documents a month long hospital stay starting in February 2001 for detoxification and counseling. Various substance abuse disorders were diagnosed, as well as depressive disorder not otherwise specified. The veteran underwent a VA examination in April 2006. The examiner noted that he had reviewed the claims file and that the examination of the veteran was rendered difficult because the Veteran was a poor historian and appeared to be inebriated. Significantly, the Veteran reported "doing real fine" and "getting in no trouble." He also reported his appetite was good, his weight had been stable and he gets enough sleep. He said he generally was not depressed but is depressed "when I am around people that make me depressed." He denied any anhedonia or change in libido. He also denied any current suicidal or homicidal ideation. The Veteran admitted at the examination to having drank the night before but not knowing how much he had consumed, and using drugs also, having done "everything." He reported first using alcohol at age 13 and that he entered rehabilitation for drug use when he was in the military in 1979. On mental examination, the veteran was casually groomed and cooperative, but appeared to be intoxicated. He could not provide a coherent and consistent history. He did not display any significant anxiety or dysphoria. His speech was within normal limits with regard to rate and rhythm. His mood was generally euthymic, and affect was appropriate to content. Thought processes and associations were logical and tight, without loosening of associations or any confusion. His memory was grossly intact. He was oriented in all spheres. He did not report hallucinations and no delusional material was noted. His insight was limited, and judgment was somewhat impaired. The diagnosis was other substance abuse (polysubstance abuse involving alcohol and unknown drugs). The examiner commented that he did not find any evidence of a depressive disorder and that that any mood disorder was mostly likely attributable to his polysubstance abuse and/or dependence. He stated that he did not find evidence of another psychiatric disorder other than what he diagnosed with the possible exception of a substance-induced mood disorder, which might be present at some times but not others. VA provided another mental disorders examination in August 2012. The examiner reviewed the Veteran's record and conducted an in-person examination with the Veteran. Ultimately, the examiner concluded that the Veteran had no mental disorder diagnosis. The Veteran reported that he lived alone but remained married to his second wife. He was in receipt of social security disability benefits, had worked in IT at the VA Medical Center in Little Rock, and would be working in IT there within the next few weeks. The Veteran was being followed through mental health and he was taking citalopram. The examiner noted that the Veteran had reported numerous run-ins with police. He reported his last alcohol use was three months ago when he drank a half-pint of whiskey and a 12-pack of beer. His first cocaine use reportedly occurred then. On clinical examination, the examiner found no psychiatric symptoms. In the remarks, the examiner explained that he did not find evidence linking the Veteran's alleged depression to his military service or to any service connected conditions. The Veteran had been seen in Mental Health in July 2012, reporting no problems with depression at that time. The examiner cited to the medical records that indicated that the Veteran began abusing substances at an early age. In other records, the Veteran had sometimes denied and at other times reported a history of physical abuse as a kid. The examiner found no evidence linking the Veteran's depression to factors other than the Veteran's family history and substance abuse. Another examination report was submitted by the same examiner in October 2012, showing the same findings for no mental health disorder. The Veteran presented for a VA examination in January 2015. After reviewing the Veteran's record and conducting an examination, the examiner concluded that the Veteran's symptoms did not meet the diagnostic criteria for a mental disorder. The examiner indicated that the Veteran had sought VA substance abuse treatment beginning in the 1990s. The Veteran's current primary diagnoses were substance abuse related and antisocial personality disorder. The Veteran referred to his service-connected disorders when asked about the nature of his mental health concerns, explaining that he did not trust people because they all wanted something from him. The Veteran reported having difficulty with sleep, only sleeping three to four hours per night. Other veterans had told him he would yell during his sleep, which the Veteran attributed to his pain. The Veteran would have dreams about someone chasing him approximately one to two times per month. The examiner referred to the Veteran's legal and behavioral history, including the Veteran's drinking while intoxicated citations in 1996 and the Veteran's substance abuse. The Veteran reported that he would drink approximately two drinks per day. Regarding a potential diagnosis of PTSD, the Veteran reported that, while in the military, he woke while a fellow soldier was performing oral sex on him. The examiner noted that this stressor, sexual in nature, was adequate to support a diagnosis of PTSD and that it was related to a personal assault during the military. However, the examiner noted that there was no marker or evidence to substantiate the claim. The proposed marker was not sufficient due to the marker not indicating a change in functioning. Behavioral observations were normal, and the examiner identified no psychiatric symptoms. Thus, the examiner found that the Veteran did not have a mental disorder diagnosis. In a May 2015 VA Mental Disorders Disability Benefits Questionnaire, a VA examiner diagnosed the Veteran with alcohol use, cannabis use, and stimulant use disorders. The Veteran reported that he was not in mental health treatment at that time. He had been treated in April 2015 for substance abuse because he had been using alcohol, cocaine, and cannabis since his discharge from the homeless domiciliary in January 2015. The Veteran was taking citalopram. The Veteran showed circumstantial, circumlocutory or stereotyped speech, as well as impaired judgment. The Veteran was casually dressed and poorly groomed. He was difficult to interview due to circumstantial rambling speech. His eye contact was poor, and his mood was agitated. The Veteran was oriented to all spheres, and there was no overt evidence of delusions or hallucinations. The Veteran had no suicidal or homicidal ideations. Based on her review of the record as well as the clinical interview, the examiner remarked that the only mental disorders present were the three substance abuse disorders diagnosed at that time. Over the years, the Veteran's primary diagnoses had been substance use disorders, personality disorder/traits, and substance-induced mood disorders. There was insufficient evidence to link any of the Veteran's substance use disorders with his service-connected medical conditions, nor was there sufficient evidence to link them to his military service. In a September 2015 addendum, the same VA examiner who provided the May 2015 opinion explained that numerous documents throughout the Veteran's file noted the Veteran's reports that drug and alcohol use began in adolescence. The Veteran had reportedly worked for twelve years for a water company after leaving the military, leaving that job in 1992. It was at this time that he began his first treatment program. Substance use/abuse patterns did not vary with the Veteran's service-connected physical health, and they were not aggravated during military service. Thus, found the examiner, there was no connection. In the October 2016 remand, the Board directed that an addendum opinion be obtained that addressed the etiology of any psychiatric disorder, to include polysubstance abuse, from the same examiner who conducted a 2015 VA examination. The examiner was to opine whether there were any psychiatric disorders, and if so, whether it was at least as likely as not that the Veteran's substance abuse disorders were caused or aggravated by his service-connected disabilities. An addendum opinion was provided in February 2017. The examiner opined that it was less likely than not that substance abuse was incurred or caused by an in-service injury, event, or illness. The examiner also opined that it was less likely than not that substance abuse was proximately due to or the result of, or aggravated by the Veteran's service-connected ankle, foot, migraine, and residuals of a traumatic brain injury disorders. The examiner noted that the evidence did not support such findings. In a separate section, the examiner noted that the Veteran had reported substance abuse beginning at age 14. Reports over the years had documented numerous contributors such as dangerous living situations on the street, assaults, and legal difficulties. The examiner again opined that the evidence did not support a significant role of any of the service-connected conditions in substance abuse. In another addendum opinion from August 2017, a VA examiner concluded that, given the totality of the record, there evidence did not suggest that any substance disorder was aggravated by the Veteran's service-connected conditions. The examiner noted that the Veteran's substance use had been consistent throughout the treatment records and that there was no logical connection between increases and decreases in substance use and fluctuations in other diagnosed conditions. Regarding the Veteran's mental conditions, it was less likely than not that his symptoms met the diagnostic criteria for any mental disorder related to his military service or other service-connected conditions. The examiner acknowledged that the Veteran's records indicate a diagnosis of major depressive disorder. This diagnosis, opined the examiner, was clearly and unmistakably erroneous. The diagnosis was made during a period of active substance use, and symptoms of a mental disorder cannot be attributable to the effects of a substance. The examiner noted that substance use is not listed among the symptoms of the disorder and given the diagnostic requirement, it is not possible to diagnose a mental disorder given the available information. Analysis First, the Board will address the first element of service connection. It is clear that the Veteran has a present polysubstance abuse disorder. Less clear, however, is whether the Veteran had other psychiatric disorders during the appeal period. The Veteran has variously claimed that he has depression, anxiety, and PTSD throughout the appeal period. VA treatment records document annotations of depression and anxiety, particularly in the early stages of this appeal period in the 1990s and early 2000s. Later treatment records do not document any disorders other than polysubstance dependence and substance induced mood disorders. See e.g. September 2004, September 2011, March 2012 VA treatment records. Further, VA examinations from April 2006, August 2012, January 2015 and opinions rendered in May 2015, September 2015, February 2017, and August 2017, find that the Veteran does not have an acquired psychiatric disorder other than his substance use disorders. The Board accords these opinions probative weight in their determinations because these aspects of the reports are premised on a review of the record, an interview with the Veteran, and are supported by adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the reasoning for the conclusion and the review of relevant medical evidence, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion). Particularly probative is the August 2017 opinion, wherein the examiner acknowledged the previous diagnosis of major depressive disorder and explained that this diagnosis was erroneous because the psychiatric symptoms used to arrive at a diagnosis of depression were actually symptoms of the Veteran's then-active substance use. In short, the evidence demonstrates that the Veteran has used alcohol, cannabis, and stimulants (cocaine), variously throughout the appeal period, but the preponderance of the evidence is against a finding that any other psychiatric disorder is present. Therefore, the Board has accorded significant probative value to the VA examinations and opinions that demonstrate substance use disorders but no other psychiatric disorders during the appeal period. Madden v. Gober, 125 F.3d at 1481. Second, the Board will address whether service connection may be granted for substance abuse. Specifically, service connection is warranted when drug or alcohol abuse results secondarily from a service-connected disability, but compensation should only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by the veteran's primary service-connected disability." Allen, 237 F.3d at 1371, 1381. Much development has been undertaken to ascertain whether the Veteran's lengthy history of substance use has been caused by the Veteran's primary service-connected disabilities. Here, his service-connected disabilities include residuals of head trauma with post traumatic headaches and bilateral ankle and foot disorders. The Veteran is severely disabled from the combined effect of his service-connected disorders and is in receipt of a total disability rating based on individual unemployability. However, as explained further below, the evidence does not establish that alcohol or drug abuse disorders are caused by the Veteran's primary service-connected disorders. The examiner who provided the May and September 2015 opinions opined that there was not sufficient evidence to link any of the Veteran's substance use disorders with his service-connected medical conditions. The examiner clarified in September 2015 that the Veteran had reported drug and alcohol use beginning during his adolescence and that the Veteran's subsequent substance use patterns had not varied with his service-connected physical health. Similar rationale was echoed by the August 2017 VA examiner, who concluded that there was no evidence to suggest that any substance disorder was aggravated by the Veteran's service-connected conditions. The examiner noted that the Veteran's substance use had been consistent, as documented in the treatment records. There was no logical connection between the historical fluctuation in the Veteran's substance use and his service-connected disorders. The Board accords these opinions significant probative weight. They are predicated on thorough reviews of the Veteran's medical history and on clinical interviews with the Veteran. Further, they are supported by adequate rationale. See Nieves-Rodriguez, 22 Vet. App. at 304. The Board finds that they are the most probative source of evidence regarding the Veteran's claim that his substance use disorders are secondarily related to his service-connected disorders. Thus, the Board finds against the Veteran's claim. In making these findings, the Board is cognizant of the Veteran's lay statements that purport to either provide a diagnosis or link a psychiatric diagnosis to service or to a service-connected disorder. In this regard, the Board finds that they are not competent as to a nexus or diagnosis. Although it is error to categorically reject a lay person as competent to provide a diagnosis or nexus opinion, not all such questions are subject to non-expert opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a medical opinion depends on the facts of the particular case. "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). But here, the diagnosis of a psychiatric disorder under particular psychiatric diagnostic criteria and ascertaining any psychiatric disorder's etiology as to other disabilities is distinguishable from ringing in the ears, a broken leg, or varicose veins, as these complex psychiatric determinations are not capable of lay observation. See Jandreau, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). As such, the Veteran's lay statements pertaining to these issues are not competent lay evidence. Regardless, the Veteran's assertions are outweighed by the medical evidence of record, which is more probative as it is based upon medical expertise. Thus, service connection is not warranted for a substance abuse disorder. 38 U.S.C. § 1110; Allen v. Principi, 237 F.3d at 1376. Thus, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. There is no reasonable doubt to resolve in this matter. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a psychiatric disorder is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs