Citation Nr: 20008320 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 14-11 566 DATE: January 31, 2020 ORDER Entitlement to service connection for substance abuse, to include as secondary to posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The record does not persuasively show that it is at least as likely as not that the Veteran’s substance abuse disability is proximately due to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for substance abuse, to include as secondary to PTSD, have not been met. 38 U.S.C. §§ 105, 1110, 1116, 1154, 5107; 38 C.F.R. §§ 3.1 (n), 3.102, 3.301(c), 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 2005 to October 2009. This matter comes before the Board of Veterans' Appeals (Board) following a February 2018 Board Remand. This matter was originally on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2017, the Veteran testified at a hearing before the undersigned. A transcript of the hearing is of record. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448–49 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to not be credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for substance abuse, to include as secondary to PTSD The Veteran contends that she has a substance abuse disability related to service. Specifically, the Veteran contends that alcohol abuse was used to help her with the symptoms of PTSD. A review of the Veteran’s medical records show the Veteran has a current diagnosis of moderate alcohol use disorder, and in December 2011 was diagnosed with amphetamine abuse, in full sustained remission. Direct service connection may be granted only when a disability was incurred in the 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 or her abuse of alcohol or drugs. 38 C.F.R. § 3.301 (a). However, the United States Court of Appeals for the Federal Circuit has held that service connection is warranted for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a veteran's service-connected disability. See Allen v. Principi, 237 F. 3d 1368 (Fed. Cir. 2001). A claimant may be compensated for a substance abuse disability only "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran’s primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. at 1381. The Board notes the Veteran is currently service connected for PTSD. The Veteran’s service treatment records (STRs) intermittently report alcohol use. In June 2008 the Veteran reported no alcohol consumption, and in August 2008, the Veteran reported a history of problems with alcohol. In August 2009, the Veteran reported she drank four to five glasses of wine per week; she reported being told wine was “ok” during pregnancy. In a March 2011 VA treatment record, the Veteran reported she only drank alcohol monthly or less in the past year, and only drank one or two alcoholic beverages on days she had alcohol. She further reported she never had six or more drinks on one occasion in the past year. In an August 2011 private treatment record, the Veteran denied alcohol or illegal drug use. However, in an August 2011 VA treatment record, the Veteran reported she drank two to three alcoholic beverages on the weekend. She denied any history of ever being dependent on alcohol, but acknowledged she probably abused alcohol on several occasions while in the military. Additionally, the Veteran reported she smoked marijuana occasionally, but denied other illicit drug use. In a December 2011 VA examination, the Veteran was diagnosed with amphetamine abuse, in full sustained remission. She reported using methamphetamine 15 times per month and noted that this started in 2001. The Veteran reported she is no longer abusing the substance and has not taken the substance for 10 years. Additionally, the examiner noted she reported a lifetime of problems with anxiety symptoms. In a June 2013 VA treatment record, the Veteran denied drinking alcohol in the past year. In a May 2015 VA treatment record, the Veteran reported substance abuse as a teenager. In an August 2015 VA examination for her PTSD, the Veteran reported she had a problem with alcohol during her enlistment and that she received treatment for alcohol abuse during her enlistment. At the September 2017 Board hearing, the Veteran testified that she only used methamphetamine as a minor in high school. Currently, she struggled with alcohol and medication. Additionally, she reported that her substance abuse impacts her life because it has resulted in blackouts in the past when she mixed alcohol and prescription drugs. In a September 2017 statement, the Veteran reported that she faces many hurdles and that alcohol abuse is a big one for her right now. The Veteran reported that after service she could only turn to close friends for help. She stated “unfortunately, my friends could only offer alcohol, marijuana, cocaine, and other street drugs to remedy any internal emotions that I struggled with and never talked about.” In February 2018, the Board remanded the Veteran’s claim for service connection for substance abuse and directed the AOJ to schedule the Veteran for a VA examination to determine the nature and etiology of her substance abuse. In a July 2018 VA treatment record, the Veteran reported she had not had an alcoholic drink in the past year. In a February 2019 VA treatment record the Veteran responded in the negative to substance abuse. In a March 2019 private treatment record the Veteran reported she has occasional drinks per day, and in a June 2019 VA treatment record she reported she drinks alcohol two to four times per week. In an August 2019 VA examination report, the examiner opined that it is less likely than not that the Veteran’s alcohol use disorder is due to or the result of the Veteran's service connected PTSD to include symptoms of anxiety and depression/ dysthymic disorder, to include as a coping mechanism for her symptoms, and that the Veteran's alcohol use disorder is less likely than not aggravated beyond its natural progression by her PTSD to include symptoms of anxiety and depression/dysthymic disorder, to include as a coping mechanism for her symptoms. The examiner noted that the Veteran reported alcohol use in larger amounts over longer periods of times than intended and unsuccessful attempts to control her use. She reported she spent time in recovery from alcohol use but continued despite negative consequences such as a car wreck and marital conflict. She reported that each time she becomes pregnant she abstains from alcohol and drugs for the entirety of the pregnancy and during the initial months of breast feeding. The examiner reported it should be noted that she also abstains from psychotropic medication during which time her psychiatrist documented "no significant depressive symptoms and mild anxiety." Further, the examiner reported the Veteran’s records show stressors for her anxiety have included parenting her children, family conflict, work stress, and financial issues. Further, the examiner reported the Veteran currently drinks daily (two or three beers), but if there is no beer, she drinks one mixed drink. On weekends, she drinks a six or 12 pack depending on what is available in the house. She reported arguments when her husband noticed how much she is drinking. The Veteran reported two alcohol related issues while in service and attending treatment in 2006 or 2007. The examiner reported that the Veteran’s records reflect a long-standing struggle with anxiety and depression, and a diagnosis of PTSD. The examiner reported that the additional conditions found were unrelated to the service-connected diagnosis. The examiner reported the Veteran’s prevalent diagnoses are anxiety disorder and major depressive disorder. The examiner found that the records reviewed failed to document a formal diagnosis of substance use/abuse but noted a current diagnosis of moderate alcohol use disorder. The examiner further reported that the Veteran’s records repeatedly documented controlled use of two or three beers on the weekends and abstinence during pregnancies and breast feeding, that the Veteran “denies history of ever being dependent on alcohol, but acknowledges that she probably abused alcohol on several occasions in the military,” and that the Veteran reported she currently drinks six to 12 beers per occasion on weekends and has blackouts. The examiner maintained that the records failed to document a clear causal nexus between the Veteran’s service-connected PTSD and her alcohol use disorder, moderate. The examiner noted proximate stressors discussed include parenting her three children, marital conflict, financial concerns, family of origin issues, and work stress. In an August 2019 private treatment record, the Veteran denied extreme stress, depression, drug abuse, and alcohol abuse. The examiner noted she had a negative alcohol screening test and reported she had an alcoholic drink two to four times per month in the past year, and when doing so only had one or two drinks. She reported she had not had six or more drinks on one occasion in the past year. In an August 2019 VA treatment record the examiner noted the Veteran reported she was afraid to go to “AA” due to social stigma. In an October 2019 statement, the Veteran reported alcohol and marijuana were coping mechanisms for stressful events that she did not want to talk about. She reported that the 90-day program she was sent to for substance abuse counseling service under the Battalion, helped her become aware of the signs of dependency. However, it was a short period of remission before she continued to grow a stronger dependency on alcohol and later marijuana for stress and pain relief due to service-connected conditions. The Veteran contended that her substance abuse is not the result of current family and financial stressors because she struggled with addiction and periods of remission years before she had a husband or children. She further reported she sought help with Alcoholics and Narcotics Anonymous groups in the past and has suffered relationship conflicts. Additionally, she maintained that although lifestyle can produce a lot of stress with work and kids, she “doesn't think they are a cause for past and previous struggles with addiction.” The Veteran reported that even when she did not abuse a substance during pregnancy and breast feeding, she realized that she compulsively shopped as an alternative, which led to financial and marital conflict. Additionally, she reported she did not mention her past substance abuse and treatment prior to military service as a minor, nor more recent habitual marijuana usage for relief of mental and physical conditions, in fear that she would get in trouble. In a November 2019 stomach VA examination, the Veteran reported she avoids alcohol. Although the Veteran contends that her currently diagnosed alcohol use disorder is due to her service-connected PTSD, the medical evidence does not show it is at least as likely as not that the Veteran’s alcohol dependence disability is proximately due to or aggravated beyond its natural progression by her service-connected PTSD. The law is clear, a claimant may be compensated for a substance abuse disability only "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran’s primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." See Allen, 237 F. 3d at 1381 (emphasis added). Thus, the Veteran’s lay intuition alone is insufficient to substantiate the nexus element of her service connection claim. The Board affords great probative weight to the findings of the August 2019 VA examiner, as she reviewed the record on appeal and applied her medical expertise in evaluating psychiatric disabilities in forming her opinion. The Board notes that the examiner’s opinion is not in conflict with the record, as there is no competent persuasive medical evidence linking the Veteran’s alcohol use disorder or any substance abuse disorder to a service-connected disability. Throughout the appeal period the Veteran intermittently reported alcohol use and no alcohol use. As such, the Board finds that the most probative evidence of record does not show that it is at least as likely as not that the Veteran’s disorder is secondary to a service-connected disability. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt provision is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Daley, Law Clerk 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.