Citation Nr: 18144815 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-16 408 DATE: October 25, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include polysubstance abuse and depression, is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran’s depressive disorder did not have its onset in service, and is not otherwise related to service. 2. The Veteran’s polysubstance abuse disorder is not a disability subject to service connection. 3. The Veteran’s tinnitus did not manifest during service, or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include polysubstance abuse and depression, have not been met. 38 U.S.C. §§ 105, 1110, 5107 (2012); 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303, 4.9, 4.127 (2018). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to June 1979. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from May 2013 and January 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. Initially, the Board notes that the Veteran failed to appear for a scheduled VA examination April 2013, and again in April 2018 without good cause shown. As such, the claim will be decided based on the evidence of record. 38 C.F.R. § 3.655. The Veteran also failed to appear for his Board hearing, therefore, his Board hearing request is considered withdrawn. See 38 C.F.R. § 20.702. The duty to assist is not a one-way street. If a Veteran wants help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran was presented with ample opportunity to submit evidence, appear at his scheduled VA examinations, and appear at a hearing, but without good cause, or even an attempt to reschedule, failed to do so. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); De la Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first 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). Service connection requires competent evidence showing (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be also granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310(a) (2018); Allen v. Brown, 7 Vet. App. 439 (1995). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, including certain types of psychoses, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 38 C.F.R. § 3.384 defines psychosis as including a brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder, not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. 38 C.F.R. § 3.384. Direct service connection for disability resulting from a claimant’s own drug or alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. Compensation cannot be awarded pursuant to 38 U.S.C. §§ 1110, 1131 and 38 U.S.C. § 105(a) either for primary alcohol abuse disabilities or for secondary disabilities that result from primary alcohol abuse. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). Primary alcohol abuse disability means an alcohol abuse disability arising from voluntary and willful drinking to excess. Id. Service connection, however, may be granted for an alcohol or drug abuse disability as secondary to, or as a symptom of, a service-connected disability. See Allen, 237 F.3d at 1375. A veteran must adequately establish through clear medical evidence that an alcohol or drug abuse disability is secondary to or caused by a primary service-connected disorder, and not due to willful wrongdoing. Id. at 1381. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises, and may also include statements from authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). A layperson is not generally capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for an acquired psychiatric disorder, to include polysubstance abuse and depression In a January 2014 rating decision, service connection was denied on the basis that the Veteran’s claims file reflected treatment for polysubstance abuse, and service treatment records were silent as to any treatment or diagnosis of a psychiatric disability. The April 2015 statement of the case confirmed the findings of the rating decision, reiterating the Veteran’s VA medical records are reflective of polysubstance abuse treatment but are otherwise silent as to any diagnosis of a psychiatric disorder. As previously noted, VA scheduled the Veteran for a VA examination to examine the nature and etiology of his claimed psychiatric disorder in April 2018. The Veteran failed to appear, and good cause was not presented for the failure to appear. As such, there is no medical opinion of record as to the Veteran’s claimed disability. The Board acknowledges that the Veteran’s VA medical records unequivocally indicate that he has received extensive treatment for polysubstance abuse. However, the Board notes that while the Veteran also has a documented history and diagnosis of polysubstance dependence, the Board reiterates that direct service connection may not be granted when a disability is the result of the veteran’s own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. See 38 C.F.R. §§ 3.1 (m), 3.301(a); Allen (William F.) v. Principi, 237, F.3d. 1368 (Fed. Cir. 2001). The Veteran has not claimed, nor has the record raised, that his polysubstance abuse may be secondary to any service-connected disabilities. Therefore, the Veteran’s claim of entitlement to service connection for polysubstance abuse must fail as a matter of law. However, the Board also recognizes that the Veteran has a current diagnosis of depressive disorder. Indeed, VA medical records contain a diagnosis of depressive disorder. See December 2013 VA treatment note. Therefore, the first Shedden element of a current disability is met. Review of the Veteran’s service treatment records reflects no complaints, treatment or diagnosis of depression or any psychiatric disability. In fact, the Veteran stated in his separation report of medical history that he is in good health, denied any suicide attempts, denied having any depression or excessive worry, and denied nervous trouble of any sort and frequent trouble sleeping. The associated separation clinical examination also reflects a normal psychiatric examination. The Board additionally notes that there are no lay contentions of record which are indicative of any in-service event or injury which may have affected the Veteran or caused a psychiatric disability. Further, there are no medical treatment notes of record showing treatment, complaint or diagnosis of a psychiatric disability until 2013, many years after separation from service. Therefore, the second Shedden element is not met. In fact, review of the Veteran’s medical record shows that the Veteran reported he first used alcohol and marijuana at approximately the early age of 16, progressing to cocaine in his 20’s until his incarceration in 2010. See November 2012 treatment note. During the same treatment session, the Veteran attributed his depression to his incarceration. A psychosocial evaluation in August 2014 shows that the Veteran again reported substance abuse over the course of his entire life, and attributed his depression to his background and the way he grew up. Financial difficulties were also pointed to as a significant contextual factor for his depression. Thus, the third Shedden element is also not met. The Board reiterates that a thorough review of the entire claims file fails to show even a scintilla of evidence that the Veteran’s depression may be related to service, other than the claim of entitlement to service connection itself. To the contrary, the Veteran’s own contentions are indicative that he attributes his psychiatric disability to reasons other than service, including his upbringing, his incarceration, and financial difficulties. Accordingly, the Board finds that the preponderance of the evidence weighs against the claim, and as such, service connection must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for tinnitus. The Veteran contends that he has tinnitus that is related to his period of active service. The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has tinnitus, which is a chronic disease under 38 C.F.R. § 3.309(a), the condition did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Veteran’s service treatment records are silent as to any complaints or diagnosis of tinnitus, and he was noted to have normal ears at his June 1979 separation report of medical examination. On his separation report of medical history, he denied ear trouble and hearing loss. Post-service VA treatment records similarly do not reflect a diagnosis or complaints of tinnitus. To the contrary, on multiple occasions the Veteran denied experiencing tinnitus when questioned by his VA treatment providers. See VA treatment records dated August 2003 and November 2012. Additionally, the Veteran does not assert that he has had tinnitus since service. Such weighs against continuity of symptomatology. Service connection for tinnitus may still be granted on a direct basis. However, the Board concludes that although the Veteran has a current diagnosis of tinnitus, and concedes his in-service noise exposure, the preponderance of the evidence weighs against finding that the Veteran’s tinnitus began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). There is simply no evidence of record to support a finding that the Veteran’s tinnitus is due to active service. Consideration has been given to the Veteran’s assertions that his tinnitus is etiologically related to service. While the Veteran is competent to report symptoms that are within the realm of his personal experience, a diagnosis that is later confirmed by clinical findings, or a contemporary diagnosis, he is not competent to independently opine as to the specific etiology of his claimed condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Thus, as a layperson, the Veteran is not competent to opine on a complex medical question of etiology such as whether his tinnitus is due to noise exposure in service, as this requires medical expertise. Consequently, lay assertions of etiology cannot constitute evidence upon which to grant the claim for service connection in this case. For this purpose, the Board finds the lay statements of record have little probative value. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for tinnitus. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established, and the claim must be denied. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel