Citation Nr: 21061958 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-10 751 DATE: October 5, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, claimed as major depressive disorder, bipolar disorder, alcohol abuse, and substance abuse, is denied. Entitlement to service connection for a colon disability is denied. Entitlement to special monthly pension (SMP) is denied. FINDINGS OF FACT 1. An acquired psychiatric disorder was not present during the Veteran's active service and did not manifest to a compensable degree within one year of service separation; the preponderance of the evidence is against finding that an acquired psychiatric disorder began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a colon disability began during active service or is otherwise related to an in-service injury or disease. 3. The Veteran does not require the assistance of another person in meeting his daily needs such as dressing, feeding himself, and keeping himself ordinarily clean, nor is he unable to protect himself from the hazards and dangers of his daily environment; and does not have a single disability rated as permanent and totally disabling. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric claimed as major depressive disorder, bipolar disorder, alcohol abuse, and substance abuse disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). 2. The criteria for entitlement to service connection for a colon disability have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). 3. The criteria for SMP have not been met. 38 U.S.C. §§ 1502, 1521, 5107, (2018); 38 C.F.R. §§ 3.351, 3.352 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision. The matter was remanded by the Board in January 2019 for further development. 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). Service connection may also be established under 38 C.F.R. § 3.303 (b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that he developed an acquired psychiatric disorder during his active duty service. He further contends that as a result of the psychiatric condition, he developed polysubstance abuse, including drugs and alcohol, to deal with his depression and anxiety. At the outset, the Board notes the Veteran has also been diagnosed with antisocial personality type. Personality disorders are not diseases or injuries subject to VA compensation but are considered congenital or developmental defects. While service connection is available for benefits related to circumstances when a psychiatric disability is superimposed upon personality disorders under 38 C.F.R. § 4.127, this does not obviate the requirement that a psychiatric disorder be independently related to service, which as will be explained in greater detail below, has not been found in the instant matter. The rules underlying 38 C.F.R. § 4.127 do not permit service connection for a disability resulting from the personality disorder. The Board also notes the Veteran has been diagnosed with polysubstance abuse, including drugs and alcohol. Disability primarily attributed to substance abuse is not compensable under VA law. As the Veteran has not been adjudicated service-connected for an underlying psychiatric disorder, secondary service connection for a pattern of substance abuse is not available. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The Board concludes that, while the Veteran has a current diagnosis of acquired psychiatric disorder, variously diagnosed as major depressive disorder, panic disorder, anxiety, and persistent depressive disorder, the preponderance of the evidence weighs against finding that the Veteran's acquired psychiatric disorder began during service or is otherwise related to an in-service injury, event, or disease. The Veteran's service treatment records are silent for any complaint or manifestation of a psychiatric disorder during service or upon examination for separation from service in October 1969. VA treatment records show the Veteran did not seek treatment until and was not diagnosed with major depression until 2011, more than four decades after his separation from service. While the Veteran is competent to report having experienced symptoms of depression, anxiety, and panic since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of an acquired psychiatric disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). For similar reasons, while the Veteran's brother is competent to state that he witnessed his brother's change in behavior after service, he is not competent to state this was a manifestation of an acquired psychiatric disorder. Id. The record contains conflicting medical opinions regarding whether the Veteran's acquired psychiatric disorder is at least as likely as not related to an in-service injury, event, or disease. The October 2012 VA examiner opined that the Veteran's depression was not due to service but more likely due to the death of his father when the Veteran was twenty-two, a poor relationship with his mother during his childhood, his chronic alcohol and drug dependence, and the consequences of his lifelong financial irresponsibility and legal problems. In a June 2020 opinion, the VA examiner reaffirmed the opinion that major depressive disorder was related to the death of his father. The examiner further opined it was not likely that the Veteran's psychiatric disorder originated during service or was otherwise etiologically related to his military service reasoning the Veteran's long history of alcohol and drug abuse had most likely played a role in causing his depression. The examiner further indicated that as the Veteran had been off medication for almost a year when examined in 2019, it revealed that depression was not a major problem, but dysphoria was common in his personality disorder because he was unable to meet his inflated sense of self. The examiner found that the Veteran's personality disorder underpinned all his current diagnoses. The VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A September 2016 private opinion that the Veteran suffered from major depressive disorder is not probative as it was not supported by any rationale. Similarly, the December 2020 opinion that the Veteran's persistent depressive disorder was due to service is less probative than that of the VA examiner. Notably, the provider indicated his opinion was based on the Veteran's service treatment records and statements of the Veteran and his brother that service was when his psychiatric disorder began. As noted at the outset of the decision, there were no complaints, treatment, or diagnosis of an acquired psychiatric disorder during service or a separation. The opinion also appears to be based on the Veteran's self-reported medical history, which is inconsistent with VA treatment records that show there were no complaints or treatment for a psychiatric disorder for more than four decades after service. Nieves-Rodriguez, supra; Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Finally, while the examiner opined alcohol abuse was secondary to his depressive disorder, since service connection has not been awarded for an underlying psychiatric disorder, secondary service connection for a pattern of substance abuse is not available. The Veteran's treatise evidence submitted on his behalf is also not probative of the matter on appeal. The article does not delve into an association between this specific Veteran's depression and service. It does not reflect familiarity with the specific facts of record and thus, is less probative than other medical evidence of record. Sacks v. West, 11 Vet. App. 314, 317 (1998). Additionally, the treatise evidence submitted is not accompanied by a probative medical opinion in support of the claim. Mattern v. West, 12 Vet. App. 222, 228 (1999). For these reasons, the treatise article is not probative, and outweighed by the VA examiners' opinions. The Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a colon disability At the outset the Board notes that as service connection for an acquired psychiatric disability has not been awarded in the instant decision, secondary service connection for a colon disability caused by excessive alcohol used to alleviate symptoms of his depression is not warranted. 38 C.F.R. § 3.310. Additionally, as the Veteran has not been adjudicated service-connected for an underlying colon disability, secondary service connection for a pattern of substance abuse is not available. See Allen, supra. Finally, service connection for a duodenal ulcer was denied by the Board in January 2019. After reviewing the evidence of record, the Board concludes that, while the Veteran was treated for colon polyps and resection of his colon during the pendency, or proximate to, filing his claim for service connection, the preponderance of the evidence weighs against finding that the Veteran's colon disability began during service or is otherwise related to an in-service injury, event, or disease. Notably, there is no evidence of colon polyps in service or for many years following his discharge. Moreover, the June 2020 VA examiner opined that the Veteran's colon disability was not related to his period of active service. The examiner reasoned that colon polyps are not related to the long-resolved (1970) bleeding duodenal ulcer as they are two distinct conditions unrelated to each other. The Veteran has not submitted any objective medical evidence to support his appeal. While the Veteran is competent to report having experienced symptoms associated with a colon disability, he is not competent to provide a nexus opinion. Jandreau, supra. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to special monthly pension The Veteran contends that he is entitled to SMP. Upon review of the record, the Board finds that the preponderance of the evidence of record is against finding that the Veteran requires the aid and attendance of another person or is housebound. SMP benefits are payable to veterans of a period of war who need regular aid and attendance. 38 U.S.C. § 1521 (d); 38 C.F.R. § 3.351 (a)(1). Requiring aid and attendance means that a person is helplessness or so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if he: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(b), (c). The following factors will be accorded consideration in determining whether a Veteran is in need of regular aid and attendance of another person: (1) his inability to dress or undress himself or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) his inability to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) his inability to attend to the wants of nature; or incapacity, physical or mental, requiring care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). It is not required that all the disabling conditions enumerated be found to exist before a favorable rating may be made. At least one factor listed must be present for a grant of SMP based on the need for aid and attendance. The particular personal functions which the veteran is unable to perform should be considered in connection with his condition as a whole. 38 C.F.R. § 3.352 (a); Turco v. Brown, 9 Vet. App. 222 (1996). Moreover, it is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. However, the finding must be based on the actual requirement of personal assistance from others. Bedridden will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. Bedridden is that condition which, through its essential character, actually requires that the claimant remain in bed. That a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352 (a). Initially, the Board finds that there is no evidence to suggest, nor allegations from the Veteran, that he is either blind (or nearly blind), a patient in a nursing home, or bedridden. Further, the evidence does not indicate that a factual need for aid and attendance has been established under 38 C.F.R. § 3.352 (a). Specifically, the October 2012 VA examiner indicated that neither the Veteran's depression or panic disorder caused him to be housebound or in permanent need for regular aid and attendance. The examiner noted he used the VA medi-car to drive to the appointment and drove to his friend's house each week for dinner and drinks. VA Form 21-2680, examination for housebound status or permanent need for regular aid and attendance, received in May 2013 shows the Veteran was able to feed and dress himself. He was also able to prepare his owns, handle his bathing, hygiene, and toileting needs. There were no restrictions regarding leaving his home or immediate premises noted. He did not need help with medication management or managing his own financial affairs. The Board has also reviewed VA treatment records and they do not indicate an inability by the Veteran to feed or dress himself, nor was there any demonstrated inability to maintain his own hygiene or attend to the wants of nature. Finally, the evidence also does not indicate that assistance is required to protect him from the hazards and dangers of his daily environment. Therefore, a factual need for aid and attendance under 38 C.F.R. § 3.352 (a) has not been established. The Board has also considered whether SMP may be warranted on the basis of being housebound. A veteran may receive the housebound rate of special monthly pension if he has a single disability rated as permanent and total (e.g., 100 percent), but not including total rating based upon unemployability under 38 C.F.R. § 4.17, and (1) has additional disability or disabilities independently ratable at 60 percent or more, or (2) by reason of disability or disabilities, is permanently housebound but does not qualify for special monthly pension at the aid and attendance rate. 38 U.S.C. § 1521 (e); 38 C.F.R. § 3.351 (d). A veteran will be determined to be permanently housebound when he is substantially confined to his house, or ward or clinical areas, if institutionalized, or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his lifetime. 38 U.S.C. § 1502 (c); 38 C.F.R. § 3.351 (d)(2). The threshold requirement for special monthly pension at the housebound rate is that the Veteran have a single permanent disability rated as 100 percent disabling. The Veteran does not meet this threshold requirement. He has no service-connected disabilities. In sum, as the Veteran does not have a single permanent disability rated as 100 percent disabling, he is not entitled to SMP at the housebound rate. The Board acknowledges that by filing the claim the Veteran believes that his medical condition is of such severity as to warrant SMP for aid and attendance or based on housebound status. However, the Board finds that the medical evidence, which directly addresses the criteria under which SMP is evaluated, is more probative than the Veteran's own assessment. In conclusion, the preponderance of the competent and probative evidence is against the claim for SMP by reason of the need for regular aid and attendance of another person or by reason of being housebound and the claim must be denied. 38 U.S.C. § 5107 (b). E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.