Citation Nr: 18158874 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 13-44 032A DATE: December 18, 2018 ORDER Service connection for an acquired psychiatric condition is denied. REMANDED Service connection for a back condition is remanded. Entitlement to an initial rating for residuals of trauma to the right hand in excess of 10 percent is remanded. Entitlement to an initial rating for residuals of trauma to the left hand in excess of 10 percent is remanded. FINDING OF FACT The Veteran’s acquired psychiatric condition is the result of his abuse of alcohol and drugs. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric condition have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.301, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1998 to May 1999, and from February 2003 to January 2004. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) in October 2012 and June 2013. In a September 2017 decision, the Board denied the Veteran’s claims for service connection for an acquired psychiatric disorder and for a back condition, and for increased ratings for bilateral hand trauma residuals. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (CAVC), which resulted in a Joint Motion for Partial Remand (JMPR) granted by CAVC in August 2018. Pursuant to the JMPR, those portions of the Board’s decision denying the aforementioned claims were vacated, and the matters remanded to the Board. The two other claims denied in that Board decision – service connection for stomach and left shoulder conditions – were not appealed and are final. With respect to the Veteran’s claim for service connection for an acquired psychiatric disorder, the JMPR instructed the Board to address a December 19, 2003 post-deployment assessment documenting feelings of depression due to family issues, a December 31, 2003 VA psychiatric form documenting an Axis I diagnosis of depressive disorder along with an Axis IV assessment of exposure to hostilities, and a June 1, 2004 VA psychiatric consult documenting depressive syndrome surrounding marriage failure and an Axis IV assessment of Iraqi war participation and divorce proceedings. With respect to the Veteran’s claim for service connection for a back condition, as set forth in more detail in the REMAND section below, the matter is remanded to the RO to obtain a new or addendum medical opinion to address a December 2003 (erroneously referenced in the JMPR as being dated November 2003) post-deployment record which reflects a complaint of back pain. With respect to the Veteran’s claims for higher ratings for bilateral hand trauma residuals, the JMPR instructed the Board to address a May 2017 VA examination showing a loss of hand grip. However, as set forth in more detail in the REMAND section below, medical evidence added to the claims file since the Board’s 2017 decision warrants remand for a new VA examination to determine the nature and extent of the claimed residuals. Additional VA treatment records and other evidence was added to the claims file after the Board’s September 2017 decision, but the Veteran’s representative waived RO consideration in a November 2018 written submission. The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence that is not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the October 2013 and May 2014 statements of the case, and are not repeated here in full. 1. Service connection for an acquired psychiatric disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). However, an injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person. 38 C.F.R. § 3.301. The Board finds the preponderance of the competent and credible evidence of record shows the Veteran has a substance induced-mood disorder, that is not related to or aggravated by military service. A January 2003 pre-deployment health assessment shows the Veteran reported that he was in good health. A December 2003 post-deployment health assessment shows the Veteran marked “yes” indicating that he was feeling depressed and hopeless. The clinician noted the Veteran was having “family issues” and he declined a consult to behavioral health. He was given a normal clinical evaluation for all systems. VA treatment records show the Veteran was admitted to the emergency department on December 31, 2003 with psychiatric symptoms including depression, disorientation, auditory and visual hallucinations, reported trouble sleeping and loss of energy. He admitted to using alcohol and although he denied use of illegal drugs, he tested positive for methadone. The provisional diagnosis was depressive disorder, with an Axis IV factor of exposure to hostilities. He was prescribed a 30-day regimen of sertraline and 10-day regiment of Seroquel (quetiapine fumarate) for depression symptoms. The Veteran returned in June 2004 for a VA psychiatric consultation, where he reported “no complaints”. The psychiatrist noted the Veteran’s history of excessive alcohol use (the Veteran reported drinking “until money ends”) and substance use disorder, to include cannabis and “diablo mix”, which appears to be a combination of cannabis, cocaine, and heroin. See http://www.narconon.org/drug-abuse/polydrug/nicknames.html (last visited December 13, 2018); see also April 2014 VA examination (Veteran reported consuming cannabis mixed with cocaine). The psychiatrist indicated the Veteran’s December 2003 episode was probably secondary to alcohol and drugs, noting the positive toxicology screen for methadone and alcohol on his breath. The psychiatrist indicated the Veteran had experienced depressive syndrome surrounding the failure of his marriage from December 2003 through February 2004, but did not then meet the criteria for depression; rather, he had substance abuse issues, to include as manifesting in adjustment disorder with depressed mood. Thus, although the Veteran clearly experienced some psychiatric symptoms while on active duty, they were thought at the time to be the result of his substance abuse, which would preclude service connection from being granted. Nevertheless, a VA examination was sought to investigate the merits of the Veteran’s claim. Following interview, examination and claims file review, an April 2014 VA examiner diagnosed substance induced mood disorder and opined the diagnosed condition was not related to, or aggravated by military service. Noting the Veteran’s reports of ongoing marijuana use since the age of 13, to include during service on a weekly basis, as well as the medical history documenting alcohol and drug abuse and related diagnoses, the examiner concluded “Mental condition since early childhood of substance induced mental disorder.” The April 2014 VA examiner’s opinion is entitled to significant probative weight because he explained the reasons for his conclusions based on an accurate and comprehensive review of the relevant evidence of record including the December 2003 and June 2004 VA mental health records and the Veteran’s lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, both the June 2004 psychiatrist found the Veteran’s December 2003 episode was probably secondary to alcohol and drugs, noting the positive toxicology screen for methadone and alcohol on his breath, and the 2014 VA examiner concluded the same. As the evidence stands, the VA examiner’s opinion has not been challenged or undermined in any way. The examiner was aware of the Veteran’s psychiatric symptoms both during and after service, to include his deployment and family issues, but clearly explained why service connection was not warranted. Moreover, the VA examiner’s opinion is consistent with the June 2004 findings regarding substance use disorder and attributing the Veteran’s December 2003 in-service psychiatric episode to alcohol and drug abuse. It is also consistent with an October 2007 VA treatment record showing the Veteran tested positive for cocaine and cannabis. This evidence is persuasive. Therefore, the December 31, 2003 diagnosis of depression disorder does not merit an award of service connection. The fact is medical professionals have attributed those symptoms and that episode to the Veteran’s substance abuse, which cannot be service-connected. The fact that the December 2003 examiner noted “exposure to hostilities” on Axis IV does not change this fact. Under the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) in use at the time, Axis IV was used to describe psychosocial and environmental factors affecting the person. Here, the Axis IV comments were based on the Veteran’s reported return from duty in Kuwait and Iraq. However, the Veteran’s December 2003 Post-Deployment Health Assessment shows he reported not being engaged in direct combat, nor ever feeling that he was in great danger of being killed. Thus, the weight of evidence shows the Veteran was not, in fact, exposed to hostilities, such that the Axis IV notation was inaccurate and therefore invalid. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis); Swann v. Brown, 5 Vet. App. 229, 233 (1993) (the Board may reject a medical opinion because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion). As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of a mental disorder. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his opinion is insufficient to provide the requisite nexus. The Board also considered all other evidence added to the claims file since the Board’s prior decision, and finds that nothing in that evidence supports a different conclusion. After consideration of all the evidence, the Board finds the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and service connection for an acquired psychiatric disorder is denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REMAND 1. Service connection for a back condition The Veteran underwent a VA examination in April 2014 in connection with his claim for service connection for a back condition. The examiner opined the Veteran’s back condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner’s rationale was that the Veteran’s military and private medical records are silent for the condition claimed, and that there was no evidence in the medical records that the Veteran complained of low back pain or continued receiving treatment for his low back condition at least within 5 years after being released from active service (i.e., no continuity of medical treatment). The rationale for the conclusion is inadequate because it does not address a post-deployment record which reflects a complaint of back pain (noted in the JMPR as dated November 2003 but shown in record to be dated December 19, 2003). On remand, the RO should obtain an addendum or new medical opinion that addresses this evidence. 2. Increased ratings for bilateral hand trauma residuals The Veteran currently has a 10 percent rating under DC 8599-8515 for residuals of trauma to each of his hands. During the pendency of the Veteran’s claims for hand trauma residuals, he underwent scapholunate ligament reconstruction surgery in February 2017 for his right wrist, and in February 2018 for his left wrist. The Veteran also underwent VA examinations for his wrists in May 2017 and April 2018. However, the Veteran’s claimed residuals of his bilateral hand trauma includes weakened hand grip, and occupational therapy records show the Veteran has demonstrated symptoms such as impaired fine motor skills and impaired dexterity, which were tested at his initial October 2012 VA hand and finger conditions examination, but not at either the 2017 or 2018 VA wrist examinations. The Board finds there is insufficient medical evidence in the record to determine the nature and extent of all residuals that have been claimed by the Veteran or raised by the record. On remand, the RO should obtain a new VA hand and fingers condition examination. Accordingly, the matters are REMANDED for the following action: 1. Obtain and associate with the record the Veteran’s complete VA medical records from May 2018 to the present. 2. Regarding the Veteran’s claimed back condition, obtain an addendum or new medical opinion, preferably from the same examiner who conducted the April 2014 VA examination (although this is not required). If the examiner finds it appropriate, a new examination should be done. After a review of the claims file and completion of any examination report, the examiner should respond to the following: Is it at least as likely as not (i.e., at least a 50 percent probability) the Veteran’s thoracolumbar spine condition was incurred in or caused by an in-service injury, event, or illness? The examiner should specifically address the Veteran’s December 2003 Post-Deployment Health Assessment. 3. Regarding the Veteran’s bilateral hand trauma residuals, schedule examination(s) to evaluate the Veteran’s wrists, hands, and fingers to determine the nature and severity of any orthopedic, neurological, or other current disabilities or functional impairments. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Leamon, Associate Counsel