Citation Nr: 18161271 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 09-01 743 DATE: December 31, 2018 ORDER 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression NOS, depressive disorder NOS, major depressive disorder, and alcohol and cocaine abuse, is denied. REMANDED 2. Entitlement to service connection for a leg disability, claimed as right leg shorter than the left leg, is remanded. 3. Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT 1. The Veteran has not been diagnosed with PTSD in accordance with 38 C.F.R. § 4.125(a). 2. The Veteran’s persistent depressive disorder did not have an onset in service and is not otherwise related to service. 3. The Veteran’s alcohol use disorder is not a disability for which service connection may be granted. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression NOS, depressive disorder NOS, major depressive disorder, and alcohol and cocaine abuse have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304, 3.384, 4.125 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1974 to September 1976. The Board remanded these matters in February 2014 for additional development. In consideration of the appeal, the Board acknowledges that the Veteran and his representative were not formally notified that VA was unable to verify the Veteran’s reported stressors. However, as explained below, the Veteran does not meet the criteria for a diagnosis of PTSD even if the Veteran’s stressor was verified, and as such, the Board finds there was substantial compliance with the remand directives as to the issues decided and will proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in January 2014, immediately prior to the February 2014 Board remand, the Veteran requested a hearing. It was unclear from the Veteran’s statement whether he was requesting a hearing for the issues on appeal, or for the RO’s proposed finding of incompetency. In September 2018, the Board sent a hearing clarification letter, asking the Veteran to clarify whether he would like a hearing on the issues on appeal. The Veteran was notified that if he did not respond within 30 days, the Board would use his previous hearing selection. As of this date, the Board has not received a response from the Veteran or his representative. On the Veteran’s January 2009 Form 9 for the issues on appeal, the Veteran selected that he did not want a Board hearing. As, such, the Board will proceed with review. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression NOS, depressive disorder NOS, major depressive disorder, and alcohol and cocaine abuse Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). Service connection for PTSD requires medical evidence diagnosing the disability in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. A lay person is competent to report to the onset and continuity of his symptomatology. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (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. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. (a) PTSD The Veteran contends he has PTSD as a result of his service in Germany. The Veteran contends that he worked in the shipping and receiving of nuclear ordinances. He reports that he was afraid that someone would drop one of the nuclear ordinances and it would explode. The Veteran at various times reports that he witnessed bombs explode, and he reports that he now has dreams of bombs exploding around him. The Veteran’s military personnel records do not document that the Veteran served in combat, and the Veteran specifically reported that he was not in combat. The Veteran’s VA treatment records document a diagnosis and history of PTSD. However, the Veteran’s original diagnosis, in approximately February 2008, did not include a thorough examination and breakdown of the various criteria required for a diagnosis of PTSD. The Veteran’s VA treatment records, from that point forward, document a history of PTSD. At a June 2012 VA examination, the examiner did not diagnose the Veteran with PTSD, but the examiner did not acknowledge the Veteran’s VA treatment records that documented a history of a PTSD diagnosis. After the February 2014 Board remand, the Veteran was provided another VA examination in October 2017. At this examination, after noting the Veteran’s VA treatment records documented a history PTSD and considering the Veteran’s stressors, the examiner concluded that the Veteran did not meet the criteria for PTSD. The examiner initially noted that the Veteran’s reported stressors did not meet the criteria for PTSD. However, even with a valid stressor, the examiner noted the Veteran did not have negative alterations in cognitions and mood associated with traumatic events and the Veteran’s disturbances did not cause clinically significant distress and/or impairment, which are also required for a diagnosis of PTSD. As the Veteran did not meet these multiple criteria, the examiner documented that the Veteran did not have a diagnosis of PTSD. The Board finds that the opinion of the October 2017 to be the most probative evidence as it included a face-to-face evaluation of the Veteran and a review of the Veteran’s claims file. The examiner went through the criteria necessary for a diagnosis of PTSD, and determined that the Veteran did not meet multiple criteria required for a diagnosis. As the more probative evidence of record does not support a diagnosis of PTSD, the Veteran is not entitled to service connection for PTSD. (b) Depressive Disorder Despite not having a diagnosis of PTSD, the Veteran’s VA treatment records include a diagnosis various forms of a depressive disorder. At his most recent VA examination in October 2017, the Veteran was diagnosed with a persistent depressive disorder. The Veteran’s reports that his dreams of bombs exploding began in service, and the records show that the Veteran was moved out of his role working with nuclear ordinances. However, the Veteran’s separation examination, conducted in August 1976, specifically documented that clinical evaluation of the psychiatric system was normal. At the Veteran’s June 2012 VA examination, the examiner opined that the Veteran’s symptoms of depression were most likely induced, at least in part, by the Veteran’s alcohol abuse. The examiner documented that it could not be determined to what extent the Veteran’s symptoms were associated with his alcohol abuse, but wrote that the Veteran’s symptoms appeared to be better managed when he abstained from alcohol use. The examiner also noted that the Veteran’s symptoms of depression were influenced by nonservice-related factors, including his marriage, unemployment, and financial strain. At the Veteran’s October 2017 VA examination, the examiner noted that the Veteran did not currently report symptoms of a depressive disorder but noted that the Veteran’s history supported a diagnosis of chronic depressive disorder. The examiner concluded that it was less likely than not that the claimed condition incurred in or was caused by the claimed in-service injury, event, or illness. He explained that the Veteran was not treated for mental health issues in service and was not in current treatment. The Board finds that the preponderance of the evidence is against a finding that depressive disorder is related to service. Two medical professionals have concluded that depressive disorder is not related to service. The Veteran is not competent to provide evidence of a nexus between the diagnosis of depressive disorder and service. Accordingly, the Board finds that the Veteran’s depressive disorder not related to his active duty service, and, as such, service connection is not warranted. (c) Alcohol and Cocaine Abuse The Veteran’s VA examinations, conducted in October 2017 and June 2012, note that the Veteran has a diagnosis of alcohol abuse and a diagnosis of cocaine abuse, which is in remission. Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of a veteran’s own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). Drug abuse is the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301. Alcohol abuse and drug abuse, unless they are a secondary result of an organic disease or disability, are considered willful misconduct. 38 C.F.R. §§ 3.301(c)(2), 3.301(c)(3). The isolated and infrequent use of drugs by itself will not be considered willful misconduct. However, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3). The law prohibits a grant of direct service connection for drug or alcohol abuse on the basis of incurrence or aggravation in the line of duty during service. Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351 (1990); VAOPGCPREC 2-98 (Feb. 10, 1998), 63 Fed. Reg. 31263 (1998). However, a veteran may be service connected for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his service-connected disability. In order to qualify for service connection, the veteran must establish, by clear medical evidence that his alcohol or drug abuse disability is secondary to or caused by their primary service-connected disorder, and that it is not due to willful wrongdoing. Allen v. Principi, 237 F.3d 1368, 1376–77 (Fed. Cir. 2001). As the Veteran is not service connected for any psychiatric disability, service connection for alcohol or cocaine dependency/abuse cannot be service connected as a matter of law. REASONS FOR REMAND 2. Entitlement to service connection for a leg disability, claimed as right leg shorter than the left leg, is remanded. 3. Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Regrettably, an additional remand is necessary for the Veteran’s claims for entitlement to service connection for a leg disability, claimed as one leg shorter than the other, and entitlement to a TDIU. The Board finds the opinion provided by the February 2018 VA examiner is inadequate. In the Board’s February 2014 remand, the Board specifically noted December 2006 VA physical therapy notes, which documented that the Veteran’s “L[eft] lower extremity [was] longer and causes L1 R[ight] scoliosis.” However, in the examiner’s review of the Veteran’s claims file, the examiner did not comment on these records. The February 2018 VA examiner also did not measure the Veteran’s leg length but went on to opine that the Veteran’s legs were not different lengths, in contradiction with the December 2006 VA physical therapy notes, and then opined that the Veteran did not have a congenital disease or defect. As the February 2018 VA examination did not include a measurement of the length of the Veteran’s legs, and the examiner opined that the legs were the same length without addressing the December 2006 VA physical therapy notes that are in direct contradiction with the VA examiner’s findings, the Board finds a remand is necessary for a complete examination, including a measurement of the Veteran’s legs and an opinion that addresses the December 2006 VA physical therapy notes. As the Veteran’s claim for entitlement to a TDIU rating is inextricably intertwined, it must also be remanded. The matters are REMANDED for the following action: 1. Send the Veteran and his representative a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and request that the Veteran complete the form and submit it to VA. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and etiology of the Veteran’s leg disability. Any and all studies, tests, and evaluations should be performed, including measurements of both the right and left leg. The claims file, including a copy of this remand, must be made available to and reviewed by the examiner. After a thorough review of the record and a thorough examination and interview of the Veteran, the VA examiner should diagnose all leg disabilities shown to exist and: (a) Document which, if any, of the Veteran’s leg disabilities constitute a congenital disease, a congenital defect, or an acquired disease or injury. The term “disease” is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, or prognosis may be known or unknown. The term “defect” is a structural or inherent abnormality or condition that is more or less stationary in nature. (b) If the examiner determines that a leg disability is a congenital defect, the examiner should provide an opinion as to whether the Veteran currently has an additional disability due to an in-service disease or injury superimposed upon such defect. (c) If the examiner determines that the Veteran’s leg disability is a congenital disease, the examiner should provide an opinion as to whether the disability clearly and unmistakably existed prior to his active service, which dates are from September 1974 to September 1976, and if the disability clearly and unmistakably underwent no permanent increase in severity as a result of his active service. (d) If the examiner does not find that the Veteran’s legs are different lengths, the examiner is asked to reconcile this opinion with the December 2006 VA physical therapy notes. See VBMS entry with document type, “CAPRI,” receipt date 10/24/2013, on pages 16-18 (specific finding of leg length discrepancy is at the bottom of page 17). (e) For any other leg disability that is not congenital in nature and did not preexist the Veteran’s active service, including the knee strain noted in the February 2018 VA examination, the examiner should provide an opinion as to whether it is at least as likely as not related to an in-service injury, event, or disease.   A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel