Citation Nr: A19001552 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 190320-6642 DATE: September 26, 2019 ORDER Service connection for an acquired psychiatric disorder, to include opiate use disorder and cocaine use disorder, in early remission, is denied. REMANDED Service connection for hypertension is remanded. FINDING OF FACT The Veteran does not have an acquired psychiatric disorder other than alcohol use disorder, opioid use disorder, and cocaine use disorder which are the result of his own willful misconduct and a mood disorder which is related to the above disorders, and were not caused or aggravated by active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are note met and service connection for alcohol and drug abuse is precluded by law. 38 U.S.C. §§ 105 (a), 1110, 5107; 38 C.F.R. §§ 3.1(m), 3.301, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1997 to May 1999. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Although the issue certified to the Board was for opiate use disorder, in early remission, and cocaine use disorder, in early remission, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue has been recharacterized to comport with the record. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. In March 2019, the Veteran submitted a Decision Review Request: Board Appeal (Notice of Disagreement) and indicated that he wanted Direct Review of the evidence considered by the Agency of Original Jurisdiction (AOJ) of his claims for entitlement to service connection for an acquired psychiatric disorder and hypertension. His claims are therefore withdrawn from the previous appeals process (the “Legacy” process). 1. Service connection for an acquired psychiatric disorder, to include opiate use disorder, in early remission, and cocaine use disorder, in early remission, is denied. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1993). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d) (2017). Direct service connection may not be granted when a disability was 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. 38 U.S.C. §§ 105 (a), 1110; 38 C.F.R. §§ 3.1 (m), 3.301(a). In this case, the Veteran has been diagnosed with alcohol use disorder, opioid use disorder, cocaine use disorder, and mood disorder during the pendency of the claim. The February 1997 enlistment examination notes that the Veteran had marijuana and other drug use upon entry into service. According to military personnel records, the Veteran was disciplined for assault and drunk and disorderly conduct in March 1999. The Veteran’s other service treatment and military personnel records do not show complaints of, treatment for, or a diagnosis of any other psychiatric disability during his active duty service. According to VA treatment records from August 2018 to October 2018, the Veteran was diagnosed with alcohol use disorder, opioid use disorder, cocaine use disorder, and mood disorder. The first indication of a diagnosis of a mood disorder was in March 2007, in which he was diagnosed with substance-induced mood disorder. He reported that he was 14 years old when he consumed enough alcohol to feel drunk and was 21 years old when he was drinking heavily. He also reported that he first starting using heroin when he was 19 years old. In a July 2018 VA treatment record, the Veteran reported that he first used marijuana in 1990 when he was 14 years old and that he first used cocaine in 1994 when he was 17 years old. He also stated that he was physically and emotionally abused by his father, who had issues with drugs and alcohol. The Veteran denied any combat experience or a traumatic experience during service. In a March 2007 VA treatment record, the Veteran related that his mother had a mental illness and that he had a history of depression since he was in high school. He also stated that he had a history of trauma and specified that his father was abusive. According to a November 2018 VA examination, the Veteran was diagnosed with opiate use disorder and cocaine use disorder, both of which were in early remission. The examiner found that the symptoms of the Veteran’s opiate use and cocaine use disorder were anxiety and chronic sleep impairment. He reported that he underwent his first 30-day drug treatment program at age 19 due to his heroin use. He also reported substance abuse and mental health treatment within three months after discharge from the Navy. While the November 2018 VA examiner did not provide an opinion as to the etiology of the Veteran’s opiate use disorder and cocaine use disorder, as these psychiatric conditions may not be service connected as a matter of law, the Board finds that a remand for a VA medical opinion is not warranted. VA's General Counsel has concluded that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs (a substance abuse disability) is precluded for purposes of all VA benefits for claims filed after October 31, 1990. VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (1999); see also VAOPGCPREC 2-98, 63 Fed. Reg. 31,263 (1998). VA General Counsel precedent opinions are binding on the Board. Brooks v. Brown, 5 Vet. App. 484 (1993). The Veteran's claim for service connection for an acquired psychiatric disorder was filed after October 31, 1990. Therefore, service connection for alcohol and drug abuse as directly related to active duty service must be denied as a matter of law. Service connection is possible for a substance abuse disorder acquired as secondary to, or as symptoms of, a service-connected disability. 38 C.F.R. § 3.310 ; see also Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). However, in this case, there is no medical or lay evidence indicating that the Veteran's substance abuse is related to a service-connected disability. In fact, the record clearly demonstrates that the Veteran began drinking from a very young age, in his teen years, prior to service. The same follows that the Veteran’s mood disorder that has been found related to the Veteran’s own substance abuse also may not be service connected as a matter of law. As there is no evidence in support of service connection on a secondary basis, service connection for alcohol and drug abuse is precluded by law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law, and not the evidence, is dispositive, the claim should be denied or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law). REASONS FOR REMAND 1. Service connection for hypertension is remanded. One of the effects of the AMA is to narrow the set of circumstances in which the Board must remand appeals to the AOJ for further development instead of immediately deciding them directly. Nevertheless, even under the AMA, the Board still has the duty to remand issues when necessary to correct a pre-decisional duty-to-assist error. See Pub L. No. 115-55 section (2)(d); 38 C.F.R. § 20.802 (a). In November 2018, the Veteran was afforded a VA medical examination for his hypertension. When VA undertakes to obtain an examination, it must ensure that the examination and opinion therein is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the November 2018 VA examiner did not provide an opinion as to the etiology of the Veteran’s hypertension. As such, the board finds that the failure of the November 2018 VA examiner to provide an etiological opinion amounts to a pre-decisional duty-to-assist error. The matters are REMANDED for the following action: (Continued on the next page)   Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as not (50 percent probability or greater) related to his active duty service. All opinions expressed must be accompanied by a complete rationale. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, Associate 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.