Citation Nr: 1807103 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 04-40 356 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include depression, anxiety, and posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Dennis L. Peterson, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Wozniak, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from January 1967 to June 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of the Phoenix, Arizona, Regional Office (RO). In May 2016, the Board remanded the appeal to the RO for additional development. The Veteran testified at two hearings before Veterans Law Judges (VLJs) in January 2008 and September 2015. The 2008 hearing as to a psychiatric disorder was conducted before a VLJ who was no longer available to review the case when it was returned to the Board after remand. The Veteran was afforded and an opportunity for an additional hearing. In March 2016, the Veteran was notified of his right to a third hearing as required by law. The Veteran responded and indicated that he did not want an additional Board hearing. Therefore, the Board will proceed with adjudication of the claim. In August 2017, the Veteran filed notice of disagreement (NOD) to a July 2017 rating decision regarding the evaluation of his service-connected back disability. The RO appears to be processing the claim and the Board will not address the Veteran's rating for a back disability in this decision. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT An acquired psychiatric disability did not originate during active service or as a result of the Veteran's service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include as secondary to the Veteran's service-connected defective hearing, tinnitus and lumbar spine disorder, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310 (a) where it is demonstrated that a service-connected disorder has caused a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). For injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof to grant service connection as to the in-service event. Collette v. Brown, 82 F.3d 389 (1996). Under the statute, in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2010). However, 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet.App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. Gregory v. Brown, 8 Vet.App. 563 (1996). Alcoholism or alcohol abuse is not a disability for the purposes VA compensation. VA law and regulations preclude compensation for primary substance abuse disabilities and secondary disabilities that result from primary substance abuse as this is deemed to constitute willful misconduct on the part of the claimant. See 38 U.S.C.A. § 105 (a) (West 2014); 38 C.F.R. §§ 3.1(m), 3.301(d) (2015); see also Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001) ("the legislative history is quite clear that Congress intended to ... preclude recovery for a primary alcohol abuse disability..."). Therefore, service connection for an alcohol abuse disability as a primary disability related to active duty service must be denied as a matter of law as service connection is not permissible for that type of disability. The Veteran's report of separation from the Armed Forces (DD 214) indicates that his military occupational specialty (MOS) was clerk-typist. He was assigned to a headquarters unit of a signal brigade and had one year, ten months, and eleven days of service in Vietnam. He has no combat-related awards or decorations. His Army enlisted qualification record (DA Form 20) indicates that although he had duties consistent with truck driver while stationed in Taiwan, he was a clerk typist for the entirety of his Vietnam tenure. In the Veteran's November 1966 examination for service entrance there was no evidence of a mental disorder or other relevant medical history. A May 1969 service treatment record (STR) indicates that the Veteran was admitted to the hospital when he accidently lacerated his right wrist with a glass bottle he broke while he was intoxicated. In October 1969, the Veteran was hospitalized for five days and diagnosed as having delirium tremens. It was noted that the Veteran had previously experienced hallucinations, and that up until the time of the hospitalizations his usual alcohol intake was "up to a case of beer a day." At the time of discharge, there was noted no evidence of gross neurosis or psychosis and the Veteran' orientation and memory were noted within normal limits. The examiner noted that the Veteran had alcoholism. In a June 1970 treatment record the Veteran had complaints of alcoholism and delirium tremens with two hospitalizations. In a March 1973 medical examination the clinician reported the Veteran's psychiatric condition and personality as "normal." In a January 1979 hearing loss examination the clinician noted the Veteran provided a vague and unreliable history regarding his service; smelled of alcohol, and appeared to be at least partially inebriated. In April 2002, the Veteran underwent an intake evaluation at a Vet Center. The Veteran reported spending eight months in Vietnam and witnessing the killing and wounding of soldiers and civilians. The Veteran identified his military occupational specialty (MOS) as truck driver and rifleman and stated that he served in combat. The Veteran stated that he was involved in rocket and mortar attacks and exchanged small arms fire with the enemy. The intake evaluator reported the Veteran had PTSD and noted exposure to combat during the Vietnam conflict. In March 2003, the Veteran was afforded a VA examination. The Veteran reported experiencing mortar attacks and witnessing dead and wounded soldiers while in a hospital treatment program. The clinician noted a severe history of alcoholism that led to hospitalizations for delirium tremens, cuts on his hands, and a suicide attempt in service. The examiner noted that in 1985 the Veteran attended a VA program for alcohol dependence and has not used alcohol since completion of the program. The examiner specifically noted that although she did not find the Veteran's reported stressor met the criteria for the substantiation of a PTSD diagnosis, she nonetheless reviewed the symptoms for PTSD with a view towards determining whether the Veteran would otherwise meet the diagnostic criteria. The examiner noted that although the Veteran had a treatment history for alcoholism, his records did not show any psychiatric symptoms such as sleep problems, appetite loss or low energy. She opined that the Veteran did not meet the criteria for a PTSD diagnosis but did have a diagnosis for depressive disorder secondary to his aging and worsening health, as well as alcohol dependence in long remission. In a January 2004 letter, the Veteran's non-VA treating social worker reported that the Veteran's depression was caused by war related traumas with mental dreams and flashbacks; past alcoholic traumas with bodily injuries; his aging process with his loss of partial hearing; working at a job which compelled him to drive long distances; emotional stigma caused by fellow employees who "look[ed] down on him;" and pain in his back and legs. In another letter dated in January 2004, a VA clinical psychologist reported that the Veteran had been attending treatment for depression at a VA hospital. The psychologist reported that the Veteran reported feeling sad and having lost interest in life for approximately the previous two years; difficulty sleeping when he did not take his pain medications; and "problems with nightmares mostly related to a childhood accident in which [the Veteran] was hospitalized for approximately months." The clinical psychologist did not mention the Veteran's military service and diagnosed the Veteran as having a major depressive disorder not otherwise specified and alcohol abuse in full sustained remission. However, after the RO issued a February 2004 rating decision continuing the denial of service connection for PTSD, the VA clinical psychologist authoring the January 2004 letter above issued a further letter in March 2004. The March 2004 letter stated that the Veteran had been attending mental treatment for sadness/depression. The clinician noted that that the Veteran was drinking heavily during his Vietnam service and began hallucinating when he would stop drinking. During one such hallucinogenic episode the Veteran stated that he was hospitalized and witnessed many U.S. soldiers who were seriously injured crying out in pain. The clinician noted the Veteran experienced depression, and sometimes became suicidal. She observed that the Veteran had problems sleeping, and had a diagnosis for PTSD. The clinician based his opinion on the Veteran's claimed exposure to combat trauma and reported the presence of symptoms related to those combat experiences. However, the examiner did not further elaborate on differences in conclusions as to the initial examination report and its addendum. A September 2005 VA treatment note indicates the Veteran was taking Paxil for his PTSD symptoms. A December 2005 letter indicates the Veteran had a diagnosis of PTSD and continued to have suicidal ideations and blackouts. In January 2006, the Veteran was afforded a VA examination. The Veteran reported military service as a truck driver and noted that he incurred injuries requiring hospitalization on two occasions. The Veteran reported that while in the hospital the Veteran spent time with soldiers who had lost limbs and were screaming out in pain. The clinician noted a diagnosis for PTSD. March 2008 social security administration (SSA) records indicate the Veteran was taking medication for depression. An April 2008 letter from the Veteran's social worker indicated that he continued to have symptoms of PTSD and addiction. In March 2010, the Veteran was afforded a further VA examination. The Veteran reported starting to drink alcohol around age 10 to kill the pain of a childhood injury and continued heavy drinking throughout high school. The Veteran reported a two week hospitalization in Vietnam for alcohol related problems, during which he heard wounded soldiers screaming and crying. The Veteran reported that he retired from his maintenance job in 2007 due to back problems. The examiner noted the Veteran's early childhood history of functional impairments including alcohol abuse, illegal behavior, and poor interpersonal relationships as the primary stressors for his diagnosed anxiety disorder. The examiner also opined that the Veteran's experience of hearing soldiers cry out in pain in a hospital could actually be alcohol withdrawal induced hallucinations. The examiner stated that the Veteran did not meet the criteria for a diagnosis of PTSD. In September 2016, the Veteran was afforded a further VA examination. The Veteran reported experiencing traumatic events including witnessing severely injured soldiers and fearing for his life when serving as a driver for civilian workers in Vietnam. The examiner opined that the Veteran met the criteria for a diagnosis of unspecified depressive disorder but did not meet the diagnostic criteria for PTSD. The examiner also stated that the Veteran did not meet the diagnostic criteria for alcohol use disorder and noted the Veteran had been sober for 31 years. The examiner concluded that the Veteran's current depressive disorder was not related to, or aggravated by his service or service-connected disabilities. The examiner noted no evidence of treatment for depressive disorder until 2003, 33 years after discharge from the military. The Board has considered the Veteran's assertions that his acquired psychiatric disability is caused by his military service. The Veteran is not competent, however, to offer an opinion as to the etiology of this type of mental condition due to the medical complexity of the matter involved. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that "PTSD is not the type of medical condition that lay evidence...is competent and sufficient to identify; Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). The Board has considered statements from a Vet Center staff member in April 2002 and a January 2006 examination indicating the Veteran had diagnosis of PTSD and noting the Veteran's combat experiences. However, the qualifications of the staff member are unknown and examiners in March 2003, March 2010, and September 2016 have all indicated the Veteran did not have PTSD. These examiners have identified a diagnosis of depressive disorder as a result of non-service connected experiences. The September 2016 examiner additionally noted that the Veteran's depressive disorder is not secondary to his hearing loss, tinnitus, or back disability. Presuming the credibility of the Veteran's account of the in-service events, there is no competent medical evidence linking his diagnosed depressive disorder to his service. As noted, the reduced evidentiary burden of 1154(b) only applies to the question of service incurrence, and not to the question of either current disability or nexus to service, both of which generally require competent medical evidence. See Brock v. Brown, 10 Vet.App. 155 (1997); Beausoleil v. Brown, 8 Vet.App. 459 (1996). The Veteran's file contains a diagnosis for PTSD with statements repeating the Veteran's assertions from individuals not qualified under 38 C.F.R. § 3.304(f) (stating that an examiner forming a nexus between a stressor claimed by the veteran and a fear of hostile military or terrorist activity must be a VA psychiatrist or psychologist). The Veteran's file contains one VA psychologist who offered his first opinion in January 2004 and discussed the causes of the Veteran's current depression as related to a childhood accident. After the RO denied the Veteran's claim in February 2004 this psychologist altered his opinion. In a March 2004 letter the same psychologist noted the Veteran's combat experiences and heavy drinking and changed his diagnosis from depressive disorder to PTSD related to the Veteran's service. As the single qualified examiner who provided both a PTSD diagnosis and nexus to service, this examiner has not only contradicted the earlier opinion but multiple opinions offered by other qualified VA examiners. The Veteran's 1966 examination for service entrance showed no history of a mental disorder and a May 1969 treatment record indicates the Veteran injured himself while intoxicated. Another STR in October 1969 notes the Veteran was hospitalized for five days due to alcohol induced delirium tremens and notes the Veteran drank "up to a case of beer a day." At time of discharge the clinician noted no neurosis or psychosis and reported the Veteran's orientation and memory as within normal limits but that the Veteran suffered from alcoholism. Additional treatment records from 1970 and 1979 indicate the Veteran struggled with alcoholism but do not note psychiatric problems. A preponderance of the evidence is against a finding that the Veteran's acquired psychiatric disability originated during service. The Veteran was first seen for his acquired psychiatric disability in 2002, approximately 30 years after service separation. Therefore, service connection is not warranted and the claim is denied. ORDER Service connection for an acquired psychiatric disorder is denied. REMAND The Veteran's claim for an TDIU is inextricably intertwined with his claim for an increased rating for his back disability. Therefore, a determination as to whether the Veteran is entitled to an increase rating for his back disability must be made prior to reaching a decision on his claim for a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The case is REMANDED for the following action: After adjudicating the Veteran's back disability claim and after completing any necessary development, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs