Citation Nr: 21001574 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-16 418 DATE: January 11, 2021 ORDER The application to reopen a previously denied claim for service connection for an alcohol abuse disorder is granted. Entitlement to service connection for alcohol abuse as secondary to service-connected posttraumatic stress disorder (PTSD) is granted. The application to reopen a previously denied claim for service connection for migraine headaches is granted. Entitlement to service connection for tension and migraine headaches as secondary to service-connected PTSD is granted. FINDINGS OF FACT 1. An April 2015 rating decision denied the Veteran’s claim for service connection for alcohol abuse; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial. 2. Evidence received since the April 2015 rating decision is not cumulative or redundant with regard to the claimed alcohol abuse, and raises a reasonable possibility of substantiating the claim. 3. The Veteran has an alcohol abuse disorder that is proximately due to service-connected disability. 4. September 2014 rating decision denied the Veteran’s claim for service connection for migraine headaches; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial. 5. Evidence received since the September 2014 rating decision is not cumulative or redundant with regard to the claimed migraine headaches, and raises a reasonable possibility of substantiating the claim. 6. The Veteran’s migraine headaches are proximately due to service-connected disability. CONCLUSIONS OF LAW 1. The April 2015 rating decision that denied an application to reopen a claim for service connection for alcohol abuse is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019). 2. New and material evidence has been received sufficient to reopen the Veteran’s claim for service connection for alcohol abuse. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 3. The criteria for entitlement to service connection for alcohol abuse as secondary to service-connected PTSD have been met. U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2019). 4. The September 2014 rating decision that denied an application to reopen a claim for service connection for migraine headaches is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019). 5. New and material evidence has been received sufficient to reopen the Veteran’s claim for service connection for migraine headaches. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 6. The criteria for entitlement to service connection for tension and migraine headaches as secondary to service-connected PTSD have been met. U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from August 2004 to February 2008. She was discharged under honorable conditions (general). See 38 C.F.R. 3.12(a). These matters come before the Board of Veteran’s Appeals (Board) on appeal from an April 2015 rating decision by the Regional Office (RO) relating to the claimed migraine headaches, and from a March 2017 rating decision relating to the claimed alcohol abuse disorder. Analysis 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for an alcohol abuse disorder as secondary to service-connected PTSD 2. Entitlement to service connection for alcohol abuse as secondary to service-connected PTSD The Veteran requests reopening of a previously denied claim of entitlement to service connection for an alcohol abuse disorder as secondary to service-connected PTSD. For the reasons explained below, the Board finds that new and material evidence has been received and the claim is reopened; furthermore, service connection for an alcohol abuse disorder as secondary to PTSD is granted. An April 2015 rating decision denied the Veteran’s original claim for service connection for an alcohol abuse disorder on the basis that there was no evidence that the claimed alcohol abuse disorder was related to her PTSD, and citing that direct service connection is generally not available for alcohol abuse. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the April 2015 rating decision, which became final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019). In January 2017, the Veteran filed a request to reopen the claim. A March 2017 rating decision reopened the claim but denied service connection on the merits, citing the fact that no current alcohol abuse disorder was shown (noting the March 2016 VA examination report had no current diagnosis of an alcohol disorder, but rather merely stated it was previously diagnosed). The Veteran appealed to the Board. See NOD, April 2017. The Board acknowledges that the March 2017 rating decision reopened the alcohol abuse claim (and denied it on the merits). However, regardless of the decision of the RO as to whether to reopen the previously denied claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. At the time of the last final denial in April 2015, the evidence of record included the Veteran’s March 2014 and May 2014 statements in which she reported experiencing military sexual trauma (MST) in service in February 2007, and alleging that her alcohol abuse began in service due to the MST. See Statement, May 2014; Form 21-0781, March 2014. Also of record were service personnel records showing she was nonjudicially punished in September 2007 for coming to work late with the smell of alcohol on her breath, and that she was charged with driving under the influence of alcohol (DUI) by civilian police in December 2007 and received a Letter of Reprimand in January 2008. See DPRIS, received October 2013 at p.9 and 15. A September 2007 service treatment record shows that because she had reported to work late smelling of alcohol, she was sent to the health clinic where urinalysis was ordered and she was diagnosed with an alcohol abuse disorder. See Personnel records, received September 2013 at p.5. Provide Breakthrough records show she received partial hospitalization treatment for a diagnosed alcohol abuse disorder, rule out dependence, from September 2007 to November 2007. See Records, received May 2014 at p.4. An April 2014 statement from her husband shows he reported that after the MST incident in service, the Veteran’s behavior changed and she began drinking in excess. Since the time of the last final denial in April 2015, new evidence associated with the claims file includes a March 2016 VA examination report (PTSD) that shows the examiner noted the Veteran had an alcohol abuse disorder secondary to PTSD, in partial remission. Specifically, the examiner wrote as follows: The Veteran was also previously diagnosed with alcohol abuse that is deemed secondary to PTSD. It has remained in partial remission and was in the at-risk range at the time of the current evaluation. The Board finds that this new evidence associated with the claims file since the last final denial that shows diagnosed alcohol abuse secondary to PTSD, in partial remission, is not only new but material. Therefore, the claim is reopened. Regarding the underlying claim for service connection for an alcohol abuse disorder as secondary to service-connected PTSD, service connection generally may not be awarded for alcohol or drug abuse. See 38 U.S.C. § 1110 (“no [VA] compensation shall be paid if the disability is the result of the veteran’s own willful misconduct or abuse of alcohol or drugs”); see also 38 U.S.C. § 105(a). Service connection for alcohol and drug abuse may only be established on a secondary basis where it is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2019). In Allen v. Principi, the Court of Appeals for the Federal Circuit held that a veteran could receive compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, the veteran’s service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Specifically, “where there is clear medical evidence establishing that alcohol or drug abuse is 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. As noted above, the Veteran is presently service-connected for PTSD as a result of MST that occurred in February 2007 in service, and she asserts that she began abusing alcohol as a result of the MST. Her service personnel records show that in September 2007, she was nonjudicially punished for being late to work and smelling like alcohol. A September 2007 service treatment record shows that because she reported to work smelling like alcohol, her captain sent her to the health clinic and she was diagnosed with an alcohol abuse disorder. Medical records from Providence Breakthrough show the Veteran had a partial hospitalization from September 2007 to November 2007 for treatment for a diagnosed alcohol abuse disorder, rule out dependence. See Records, received May 2014 at p.4. Subsequent service personnel records show she was charged in December 2007 by local civilian police with a DUI. Post-service, VA treatment records from 2008 show the Veteran participated in an alcohol and drug abuse education group. A November 2008 record shows a diagnosis of alcohol dependence, in remission. See CAPRI, received January 2017 at p.1 of 25. An August 2014 VA examination report (PTSD) shows the examiner noted the Veteran had a history of excessive drinking following the MST in service, which was a marker to support the presence of sexual assault. An August 2015 VA treatment record notes a history of excessive drinking since service, the in-service DUI and partial inpatient treatment, and an alcohol abuse disorder, episodic, was diagnosed. See CAPRI, received February 2017 at p.8 and 48 of 103. An August 2016 record shows she reported drinking three to four drinks, two to three times per week. See CAPRI, received February 2017 at p.17 of 103. A March 2016 VA examination report (PTSD) shows the Veteran reported current alcohol use to be one or two beers on two to three weekdays, and up to five beers on weekends. She reported approximately five intoxications in the last year, both while alone and while socializing with her husband. When asked about the negative consequences associated with her alcohol use, she reported feeling guilty after any excessive use and having to call out from work at least once in the last two months due to being hung-over. She reported drinking to blackouts in service, but a significant reduction in use when compared to then. The examiner diagnosed alcohol abuse, in partial remission (but in the “at risk range”), and opined it is secondary to the Veteran’s PTSD. The Board acknowledges a copy of a web article from the VA website that the Veteran submitted in support of her claim, which states that “some people try to cope with their PTSD symptoms by drinking heavily . . . PTSD increases the risk that he or she will develop a drinking or drug problem.” The Board also acknowledges the Veteran’s testimony at the Board hearing, where she asserted that an alcohol abuse disorder is not one that can be completely “cured.” In light of the above evidence of record, the Board finds the Veteran has an alcohol use disorder, in partial remission, that was caused by her service-connected PTSD resulting from her MST in service. As shown above, the March 2016 VA examiner clearly diagnosed an alcohol abuse disorder, in partial remission, and opined that it was caused by her PTSD. The Board finds this VA examiner’s opinion to be the most probative. While the Board acknowledges that this diagnosis was not notated in the Axis section of the report, the Board finds that the diagnosis was nevertheless rendered, along with the etiological opinion. The Board acknowledges that a subsequent March 2017 VA examination report shows the Veteran reported drinking two to three times per week, consuming from three to six beers, and that on occasion, her alcohol consumption has led to hangovers that impacted her work performance. Nevertheless, this VA examiner opined that the Veteran does not meet the DSM-V diagnostic criteria for an alcohol abuse disorder. The examiner essentially reasoned that daily alcohol use was not shown. The Board finds this opinion to be of little probative value because daily alcohol consumption is not included in the DSM-V criteria for an alcohol abuse disorder diagnosis. Furthermore, the March 2017 VA examiner failed to explain whether the alcohol abuse disorder was in “early remission” versus “sustained remission,” as provided for the in DSM-V. The DSM-V provides that an alcohol abuse disorder is in “early remission” where: “Full criteria for alcohol use disorder were previously met, [but] none of the criteria for alcohol use disorder have been met for at least 3 months but for less than 12 months (with the exception that Criterion A4, “craving, or a strong desire or urge to use alcohol,” may be met). “Sustained remission” is defined as: “After full criteria for alcohol use disorder were previously met, none of the criteria for alcohol use disorder have been met at any time during a period of 12 months or longer (with the exception that Criterion A4, “craving, or a strong desire or urge to use alcohol,” may be met). See DSM-V at p.491. Therefore, in summary, the Board concludes that the claim for service connection for an alcohol abuse disorder as secondary to PTSD is reopened, and the service connection is granted. 3. Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for migraine headaches as secondary to service-connected PTSD 4. Entitlement to service connection for tension and migraine headaches as secondary to service-connected PTSD The Veteran requests reopening of a previously denied claim of entitlement to service connection for migraine headaches as secondary to service-connected PTSD. For the reasons explained below, the Board finds that new and material evidence has been received and the claim is reopened; furthermore, service connection for tension and migraine headaches as secondary to PTSD is granted. A September 2014 rating decision denied the Veteran’s original claim for service connection for migraine headaches as secondary to ocular eye floaters on the basis that the Veteran was not service connected for ocular eye floaters. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the September 2014 rating decision, which became final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019). In March 2015, the Veteran filed a request to reopen the claim for service connection for migraine headaches. She alleged they were caused or aggravated by her PTSD. An April 2015 rating decision appears to have reopened the claim but denied service connection on the merits, citing the fact that there was no evidence that her migraine headaches were related to her PTSD. The Veteran appealed to the Board. The Board acknowledges that the April 2015 rating decision appears to have reopened the claim for service connection for migraine headaches, and denied it on the merits. However, regardless of the decision of the RO as to whether to reopen the previously denied claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. At the time of the last final denial in September 2014, the evidence of record included the Veteran’s service treatment records, which showed no complaints of headaches except in June 2006 in the context of treatment for a cold. See Records, received April 2008 at p.27. The records also included post-service VA treatment records, which showed no headache or vision complaints or diagnosed migraine headache disability. Since the time of the last final denial in September 2014, new evidence associated with the claims file includes a March 2016 VA examination report, with a December 2016 addendum, in which the examiner diagnosed both migraine headaches and tension headaches, and essentially opined that the Veteran’s tension and migraine headaches are aggravated by her service-connected PTSD. The Board finds that this new evidence associated with the claims file since the last final denial, including the positive medical opinions by the VA examiner, are not only new but material. Therefore, the claim for service connection for migraine headaches is reopened. Regarding the underlying service connection claim, the Veteran asserts that her headaches are caused by her service-connected PTSD. In the alternative, the Veteran asserts that her service treatment records show she began to experience aura symptoms in service; the Board notes, however, that her service treatment records are negative for any aura or headache complaints, and there is otherwise no evidence tending to indicate that the Veteran’s headaches are directly caused by her active service. Post-service, a March 2015 VA primary care record shows the Veteran reported migraine headaches with aura. See CAPRI, received February 2017 at p.64. An August 2015 VA neurology record shows the Veteran reported a history of abnormal visual sensation prior to some of her headaches, particularly the bad ones. She described wavy lines or blurring of vision lasting up to an hour. She also reported on one occasion experiencing tingling of her right hand. Suspected migraine headaches were diagnosed and she was prescribed topiramate. See CAPRI, received February 2017 at p.45-47. A March 2016 VA examination report shows the VA examiner diagnosed migraine headaches and tension headaches, and opined that “PTSD may contribute and exacerbate a headache condition, such as migraine or tension type headaches. Sleep deprivation, which may occur with PTSD, may exacerbate and trigger headaches as well.” The RO subsequently requested an addendum opinion from the same VA examiner. A December 2016 addendum opinion, by the same examiner, shows the VA examiner again essentially opined that the Veteran’s PTSD may aggravated her headaches. The examiner wrote that PTSD “cannot be considered a specific cause” of tension headaches, and that “PTSD is not considered to be a cause of migraine headaches.” However, the examiner further opined that PTSD is one of “many factors” that aggravates tension headaches, and if severe enough, PTSD can aggravate migraine headaches. (continued next page) The Board finds that these two VA medical opinions, taken as a whole, show the VA examiner opined that the Veteran’s service-connected PTSD aggravates her tension and migraine headaches, albeit possibly not the only aggravating factor. Therefore, the Board finds that the evidence sufficiently shows that the Veteran’s headaches are aggravated by her PTSD, and the claim for service connection for headaches secondary to service-connected PTSD is granted. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Juliano, 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.