Citation Nr: 19155083 Decision Date: 07/16/19 Archive Date: 07/16/19 DOCKET NO. 18-38 352 DATE: July 16, 2019 ORDER A claim for service connection for a substance abuse disability is reopened; to this limited extent only, the appeal is granted. Entitlement to service connection for an acquired psychiatric disability, other than a substance abuse disability, to include posttraumatic stress disorder (PTSD) and depressive disorder, is denied. REMANDED 3.Entitlement to service connection for a substance abuse disability, to include as due to service-connected disability, is remanded. FINDINGS OF FACT 1. Service connection for a substance abuse mental health condition was denied in a November 2014 decision; the Veteran did not appeal that decision, and no new and material evidence was submitted within a year. 2. New evidence received since the November 2014 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a substance abuse disability and raises a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had an acquired psychiatric disorder, other than a substance abuse disability, to include PTSD and depressive disorder, at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The November 2014 rating decision is final with respect to the issue of entitlement to service connection for a substance abuse mental health condition. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received since the final November 2014 rating decision, and the claim of entitlement to service connection for a substance abuse disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for an acquired psychiatric disorder, other than a substance abuse disability, to include PTSD and depressive disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 2007 to January 2011. Historically, a claim for substance abuse (mental health) was submitted by the Veteran in October 2013 at which time his contention was that his substance abuse (mental health) was a secondary condition to his service-connected health issues as a means of self-medicating and that it began while he was in service. The claim was denied in a November 2014 rating decision. In March 2017, the Veteran filed a claim for service connection for depression and PTSD which was denied in August 2017. In August 2017, the Veteran requested reconsideration of his claim for service connection for PTSD. The Veteran’s claim for service connection for substance abuse mental health condition (claimed as PTSD) was reopened but denied on its merits in an October 2017 rating decision. In February 2018, the Veteran submitted his Notice of Disagreement with the October 2017 rating decision and indicated that the specific issue of disagreement was with service connection for an “[a]nxiety disorder (claimed as PTSD).” In June 2018, the Agency of Original Jurisdiction (AOJ) issued a Statement of the Case for the issue of service connection for PTSD with anxiety (previously considered as a substance abuse mental health condition); and in July 2018, the Veteran submitted his VA Form 9, Appeal to the Board of Veterans’ Appeals, and perfected his appeal. In a written statement included with his VA Form 9, the Veteran noted changes in his behavior, mood swings, anger, and alcohol use since being in the service. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. In light of Clemons, the issue has been recharacterized to encompass all psychiatric diagnoses, including his substance abuse disorder. Further, the Board is bifurcating this issue into two separate issues - (1) request to reopen the previously-denied claim of entitlement to service connection for substance abuse mental health condition and (2) entitlement to service connection for an acquired psychiatric disability, other than substance abuse disability, to include PTSD and depressive disorder. The Board can bifurcate a claim and address different theories or arguments in separate decisions. Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006). The Board concludes that bifurcating the Veteran’s claim for an acquired psychiatric disorder into two separate issues for independent adjudication is the most proper way of handling the appeal. See Locklear v. Shinseki, 24 Vet. App. 311 2011).   Request to Reopen Claim for Service Connection VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must review all evidence submitted by or on behalf of a claimant since the last, final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 510-513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Request to reopen a claim for service connection for a substance abuse disability A claim for service connection for a substance abuse mental health condition was previously denied by a November 2014 rating decision. The Veteran did not appeal the decision or submit new and material evidence within one year; and the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The November 2014 rating decision noted, The evidence does not show an event, disease or injury in service. Service connection for substance abuse mental health condition is denied since this condition neither occurred in nor was caused by service. You claimed substance abuse mental health condition secondary to your service connected conditions, however there is current diagnoses. Service connection for substance abuse mental health condition secondary to your service connected conditions is denied. At the time of the November 2014 rating decision, the evidence of record included an August 2010 medical record which noted that an alcohol screening showed potential alcohol problem, VA treatment records which include alcohol dependence in the active problem lists; and a June 2014 VA examination report which indicates that the Veteran did not have a mental disorder diagnosis, that he did not have a history of substance abuse during adolescence, that he started drinking at the age of 18, and that he denied having problems associated with alcohol consumption despite being charged with public intoxication in 2009. Additional evidence received since the November 2014 rating decision includes additional service treatment records which includes a duplicate August 2010 medical record which noted that an alcohol screening showed potential alcohol problem; VA treatment records which include alcohol dependence in the active problem lists; and a September 2017 VA examination report which indicates that the Veteran met the diagnostic criteria for Alcohol Use Disorder, that he started drinking before he enlisted in the service, that he drank heavily in the service, that he continued to drink heavily, and that there was nothing to support a claim that the service caused his drinking or alcohol use disorder. The Board finds the September 2017 VA examination report relates to an unestablished fact necessary to substantiate the claim of service connection. As noted above, the November 2014 rating decision noted that a substance abuse mental health condition neither occurred in nor was caused by service. The September 2017 VA examiner, however, noted that the Veteran’s alcohol use became heavy during service. This tends to corroborate the Veteran’s October 2013 contention that his substance abuse (mental health) was a secondary condition to his service-connected health issues as a means of self-medicating and that it began while he was in service. Accordingly, the Board finds that the evidence received subsequent to November 2014 rating decision is new and material and serves to reopen the claim of service connection for substance abuse disability. The Board has considered whether the additional service treatment records received subsequent to the November 2014 rating decision allow for the claim to be reviewed on a de novo basis. Applicable regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156 (c)(1)(i). In this case, as noted above, the additional service treatment records received subsequent to the November 2014 rating decision included a duplicate August 2010 medical record which noted that an alcohol screening showed potential alcohol problem. Thus, the only relevant record, the August 2010 medical record, had been associated with the claims file when the claim was decided in November 2014; and reconsideration pursuant to 38 C.F.R. § 3.156 (c) is not warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 2. Entitlement to service connection for an acquired psychiatric disability, other than a substance abuse disability, to include PTSD and depressive disorder The Veteran contends that he has an acquired psychiatric related to his active duty service. The question for the Board is whether the Veteran has an acquired psychiatric disorder that began during service or is at least as likely as not related to an in-service injury, event, or disease. To establish service connection for PTSD, there must be medical evidence establishing a diagnosis of the condition 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 claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). Concerning the requirement that there be credible supporting evidence that the claimed in-service stressor occurred, VA regulation sets forth exceptions in which a claimant’s lay testimony, alone, may establish the occurrence of the stressor. See Id. These include when PTSD is diagnosed during service, stressors related to combat service, stressors related to being a prisoner of war, and stressors related to “fear of hostile military or terrorist activity.” Id. The Veteran does not contend, and the evidence does not demonstrate, that PTSD was diagnosed during service; the service treatment records are absent a diagnosis of PTSD. The Veteran also does not contend, and the evidence does not demonstrate, that the Veteran had combat service or was a prisoner of war. On his Pre-Discharge Compensation Claim received by VA in November 2010, the Veteran specifically indicated that he did not service in a combat zone since September 11, 2001; and at his initial VA examination in December 2010, the Veteran specifically noted that he had not been involved in combat activity. In his July 2017 “buddy statement,” J.S. specifically noted, “I know [the Veteran] never saw combat and I know that has haunted him. … He trained and trained to make a difference at war but was unfortunately only sent on Marine Expeditionary Units (MEU[s]).” In his written statement received with his VA Form 9 in July 2018, the Veteran confirmed that he was not in combat; and in fact, noted that the reason he did not reenlist was that he had deployed twice on two MEUs and was notified that “they” were going to go on a third MEU. The Veteran further does not contend, and the evidence does not demonstrate that his stressor was related to his fear of hostile military or terrorist activity. In fact, on his VA Form 9, Appeal to the Board of Veterans’ Appeals, received in July 2018, the Veteran noted that during service, he trained hard on a daily basis to get to “that moment to do what we all signed up to do. Locate and destroy the enemy” and that one of the most difficult things that he had to deal with was “[n]ot going to combat with all my brothers that I did serve with and knowing that I did nothing to help them.” Instead, the Veteran’s claimed stressor occurred after the Veteran had been discharged from service. At the June 2014 VA examination, the Veteran reported calling the VA help line in March or April due to feeling overwhelmed by the deaths of “buddies” in the military; he wondered if there was anything he could have done to help them. In his written statement received in March 2017, the Veteran indicated that his stressful incident occurred in January 2012 when a fellow Marine was killed in Afghanistan by an improvised explosive device (IED). In July 2017, the Veteran submitted a “buddy statement” authored by J.S. J.S. stated that about one year after enlistment, the Veteran had become alcohol dependent; after separation from service, he was not the same person that he knew from high school, he had a very short fuse, he drank heavily to the point where he had to be pulled away from several fights, and he “got even worse” when a Marine buddy of his was killed in action in Afghanistan and he blamed himself for not being there when he could have been needed. At the September 2017 VA examination, the Veteran reported that his stressor was that after he separated from service, a fellow service member was killed by an IED. The Board notes that although there are diagnoses of PTSD in the VA treatment records, they appear to be related to either the Veteran’s post-service stressor or to active duty combat experiences. A December 2016 VA treatment record which includes a diagnostic impression of PTSD reflects that the Veteran reported that “he was in combat in Kuwait;” and a February 2017 VA treatment record which includes a diagnosis of PTSD reflects that the Veteran reported “combat deployment to Kuwait.” In this case, as the PTSD diagnoses are based on an inaccurate factual premise, the evidence is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The most probative evidence of record, two VA examination reports dated in June 2014 and September 2017 indicate that the Veteran did not have a diagnosis of PTSD that conformed to DSM-IV and DSM-5, respectively. The September 2017 VA examiner noted that the Veteran exhibited symptoms of depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, and impaired impulse control. The examiner noted that the Veteran completed a Patient Health Questionnaire (PHQ-9) and PTSD Checklist for DSM-5 (PCL-5) and that results suggested an over-endorsement of symptoms when considered in context of life skills and general personal history. The examiner noted that the Veteran reported that he was a very heavy drinker, drinking up to 30 beers at a time each weekend plus about six beers each day after work; that he reported symptoms of irritable mood, sleep impairment, tendency to ruminate over loss of fellow soldier, tendency to be loud and argument with wife, and tendency to get into fights when surrounded by loud, chaotic crowds of people; and that [m]ost, if not all of these symptoms are best understood as consequence of heavy, daily alcohol use rather than PTSD as claimed by the veteran. Veteran does not have a Criteria A stressor. Veteran does not have avoidance behaviors. He does have intrusive thoughts about the loss of a friend and sometimes the terrain of west Texas will remind him of the terrain in Afghanistan. This is not sufficient to support a diagnosis of PTSD …. In the absence of a diagnosis of PTSD that conforms to either DSM-IV or DSM-5 criteria based on a verified in-service stressor, the criteria for service connection for an acquired psychiatric disability have not been satisfied. See 38 C.F.R. § 3.303 (f). The weight of the evidence is also against finding that the Veteran has any other acquired psychiatric disorder that began during service or is at least as likely as not related to service. The Board notes that a November 2016 VA treatment record includes an assessment of depression. The VA examiners in June 2014 and September 2017, however, did not find that the Veteran had a diagnosis of a depressive disorder that conformed to DSM-IV or DSM-5. The September 2017 VA examiner also stated that most of the Veteran’s symptoms were best understood as consequence of heavy, daily alcohol use and that such symptoms were not sufficient to support a diagnosis of depressive disorder. In the absence of a diagnosis of any acquired psychiatric disorder that began during service or is at least as likely as not related to service, the criteria for service connection for an acquired psychiatric disability have not been satisfied. See 38 C.F.R. § 3.303. Although the Veteran is competent to report having experienced psychiatric symptoms since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of either PTSD or depressive disorder. The issue is medically complex as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examiners’ determination that the Veteran does not have a diagnosis of either PTSD or a depressive disorder that conforms to DSM-IV or DSM-5. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 3. Entitlement to service connection for a substance abuse disability In the Veteran’s original claim for service connection for substance abuse, he stated that his alcohol use was a means of self-medicating due to his service-connected back disability. As noted above, the Veteran underwent VA examination in June 2014 and September 2017. The June 2014 VA examiner found that the Veteran did not have a mental disorder diagnosis, that he did not have a history of substance abuse during adolescence, that he started drinking at the age of 18, and that he denied having problems associated with alcohol consumption despite being charged with public intoxication in 2009. The September 2017 VA examiner found that the Veteran met the diagnostic criteria for Alcohol Use Disorder, that he started drinking before he enlisted in the service, that he drank heavily in the service, that he continued to drink heavily, and that there was nothing to support a claim that the service caused his drinking or alcohol use disorder. Although the September 2017 VA examiner rendered an opinion regarding service connection on a direct basis, he did not offer an opinion regarding service connection on a secondary basis. Thus, a remand is necessary to obtain such an opinion. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s substance abuse disorder is at least as likely as not proximately due to service-connected disability or aggravated beyond its natural progression by service-connected disability. The examiner is to be informed that service connection has been established for tinnitus, radiculopathy of bilateral lower extremities, thoracolumbar degenerative disc disease with intervertebral disc syndrome, bilateral sensorineural hearing loss, and bilateral paravertebral incision scars. In providing the opinion, the examiner should consider the Veteran’s assertion that his alcohol use is a means of self-medicating for his service-connected disabilities. A complete rationale must be provided for all opinions expressed. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Olson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.