Citation Nr: 21064788 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-23 096 DATE: October 21, 2021 ORDER Service connection for a left ankle disability is denied. REMANDED Service connection for osteoarthritis of the lower back is remanded. Service connection for hypertension (claimed as secondary to PTSD) is remanded. A rating in excess of 50 percent for PTSD to include major depressive disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence weighs against finding that the Veteran's alcohol abuse disorder is proximately due to or aggravated by the service-connected PTSD. 2. The Veteran's actions prior to the July 1987 motor vehicle accident (MVA), specifically, consuming alcohol in excess and driving, constituted willful misconduct. CONCLUSION OF LAW The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.301, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran honorably served in the Army from February 1984 to January 1987. These matters are on appeal from an August 2014 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in November 2020 and a transcript has been associated with the claims file. 1. Service connection for a left ankle disability due to a July 1987 motor vehicle accident (MVA) as caused by a service-connected disability In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all of the evidence in the claims file, including the medical and lay evidence, to determine its probative value. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Veteran's contention is that his service-connected PTSD caused the circumstances of a July 1987 post-service MVA in which he injured his left ankle. Relevant to this contention is a May 2014 correspondence from a VA psychologist which states that the Veteran was exposed to psychological trauma prior to a July 1987 MVA and that the confluence of the Veteran's PTSD symptoms, intoxication, and impulsive nature increased the probability of this accident occurring. In that regard, the June 2017 VA psychological examination indicates a diagnosis for a moderate alcohol abuse disorder. A February 2018 VA medical examiner stated that it would be speculative to opine as to whether the Veteran's PTSD symptoms (including reckless behavior) may have precipitated the July 1987 motor vehicle accident because doing so would require relying exclusively on the Veteran's retrospective self-report of symptoms. The examiner further opined that it is less likely than not that a diagnosed alcohol abuse disorder is secondary to service-connected PTSD. The examiner indicated that finding any such nexus would be purely speculative due to reliance on the Veteran's lay reports alone and that there was insufficient evidence to establish a causal relationship. Moreover, a May 2005 VA examiner came to the same conclusion while also noting that the Veteran denied any substance abuse issues during a February 2004 VA psychological examination. Further, the February 2004 VA examination report did not indicate that the Veteran used drugs or alcohol to self-medicate due to PTSD symptoms. Accordingly, the May 2005 and February 2018 VA examiner's opinions found that it was less likely than not regarding a possible relationship between the Veteran's service-connected PTSD and an alcohol abuse disorder. The Board affords these medical opinions significant probative value because the examiners based their opinions on the medical evidence of record, an in-person examination of the Veteran, and their training, experience, and expertise as medical professionals. Additionally, the Board finds these opinions to be more probative than the May 2014 VA psychologist's correspondence because they were more thorough, more specific, and were based on a review of the Veteran's records to include during the time frame of the post-service MVA. The Board has considered the lay testimony and statements from the Veteran and his representative. However, they are not competent to establish the requisite nexus finding here because this determination requires medical expertise and training which they do not possess. 38 C.F.R. § 3.159 (a)(1); See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Moreover, the preponderance of the competent medical evidence competent weighs against finding proximate causation or aggravation of an alcohol abuse disorder by service-connected PTSD. 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the preponderance of the evidence weighs against finding that the Veteran's alcohol abuse disorder is proximately due to or aggravated by his service-connected PTSD and granting service connection on a secondary basis for injuries resulting from the July 1987 MVA as due to an alcohol abuse disorder that was caused or aggravated by service-connected PTSD is not warranted. 38 C.F.R. § 3.310. Finally, also at issue here is whether the circumstances of the July 1987 MVA were caused by the Veteran's own "willful misconduct" due to his admitted and documented intoxication at the time of the accident. No compensation shall be paid if a disability is a result of a veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110; see also 38 C.F.R. § 3.301 (b). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard of, its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease, or death. 38 C.F.R. § 3.1 (n). The phrase "willful misconduct," in its ordinary meaning, entails three requirements for the Board to find the phrase applicable. The Board must (1) identify conduct; (2) the identified conduct must be misconduct; and (3) the identified misconduct must be willful. Martin v. McDonald, 761 F.3d 1366, 1369 (Fed. Cir. 2014). Willful misconduct means an act involving conscious wrongdoing or known prohibited action and involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. at 1369-70. Willful misconduct refers to an act of conscious wrongdoing, involving elements of intent and voluntariness. Id. at 1370. Where drug and alcohol use are at issue, service connection is precluded "in two situations: 1) for primary alcohol abuse disabilities; and 2) for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse." Service connection is not precluded if alcohol abuse is secondary to a service-connected disability. Even if a veteran has a service-connected disability, however, service connection would be precluded for the alcohol or drug abuse disability if it is due to willful action rather than the result of the service-connected disability. Allen v. Principi, 237 F.3d 1368, 1376, 1378 (Fed. Cir. 2001). Furthermore, the simple drinking of an alcoholic beverage is not of itself willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301 (c)(2). VA must establish by a preponderance of the evidence that the injury was proximately caused by an act of willful misconduct by the veteran. See Thomas v. Nicholson, 423 F.3d 1279, 1285 (Fed. Cir. 2005); Myore v. Brown, 9 Vet. App. 498, 503 (1996). Here, the Veteran stated during the November 2020 hearing that he was intoxicated at the time of the July 1987 MVA. See November 2020 Hearing Transcript, Pg. 9. The May 2005 VA medical opinion notes that the Veteran's blood ETOH at the time of the accident was .19. The Board concludes, in this case, that the Veteran's act of drinking and driving constituted willful misconduct. Willful misconduct in cases involving alcohol consumption is the willingness to achieve a drunken state and, while in this condition, to undertake tasks for which the person is unqualified, physically, and mentally, because of the resulting intoxication. Determinations of willful misconduct in such instances depend on the facts found. Under 23 U.S.C. § 163, BAC of .08 is a per se violation of driving while intoxicated. By July of 2005, all states, including Washington D.C., and Puerto Rico, had adopted a BAC of .08 as the legal level intoxication. If an individual's BAC is .08 or more, a presumption is established that the person was under the influence of intoxicating liquor. At the time of the Veteran's death, his blood alcohol level was twice the recognized legal limit and a presumption that he was driving under the influence applies. Again, the law is clear that, if intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's own willful misconduct. See 38 C.F.R. § 3.301 (c)(2); Gabrielson v. Brown, 7 Vet. App. 36, 41 (1994). Therefore, service connection for a left ankle disability as proximately due to or the result of service-connected PTSD is not warranted because the evidence demonstrates that the circumstances of the July 1987 MVA were the result of willful misconduct which is a bar to establishing service connection in this matter. REASONS FOR REMAND 2. Service connection for osteoarthritis of the lower back The Veteran was afforded a VA examination in connection with this claim in December 2013. The examiner noted in the examination report that the Veteran initially injured his back during service in 1986 while moving a refrigerator and denied having any back issues since the initial injury. However, the examiner also stated that the Veteran reported intermittent back pain throughout the years which has slowly increased in frequency and severity. The Veteran provided competent and credible testimony during the November 2020 hearing that he treated his back symptoms with heating pads and over-the-counter medications in the years between his initial injury and seeking formal treatment in 2012. In that regard, the December 2013 VA examiner's opinion is inadequate because an opinion based on the absence of documented medical treatment without consideration of a veteran's competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for the purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Because the record does not contain a medical opinion sufficient to fairly adjudicate the Veteran's claim, the Board finds that remand is necessary to obtain an adequate medical opinion that fully assesses the nature and etiology of the Veteran's back disability. 3. Service connection for hypertension (claimed as secondary to PTSD) VA medical treatment records reflect that the Veteran has been treated for hypertension since May 2005. His contention is that this disability is proximately due to or aggravated by his service-connected PTSD, specifically the symptom of chronic sleep impairment. See November 2020 Appellate Brief. To date, the Veteran has not been afforded a VA examination to address any potential medical nexus between his hypertension and his service-connected PTSD pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006). Consequently, the Board finds that this matter must be remanded for a VA examination to address the nature and etiology of the Veteran's hypertension. 4. A rating in excess of 50 percent for PTSD to include major depressive disorder During the November 2020 hearing the Veteran testified that his psychiatric symptoms are more severe than what is being compensated for by his currently assigned 50 percent rating for PTSD. He specifically endorsed several symptoms that are contemplated by a higher 70 percent under the applicable rating criteria. The Veteran has essentially claimed a worsening of symptoms since he was last afforded a VA psychological examination in June 2017. The Board therefore finds that this claim must be remanded to assess the current severity of this disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Associate with the Veteran's claims file any outstanding VA treatment records. 2. Schedule the Veteran for an examination by a qualified professional to determine the current severity of his PTSD. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should describe all pertinent symptoms, pathology, and impairment associated with such disability in sufficient detail to allow for application of the pertinent rating criteria. 3. Schedule the Veteran for a VA examination with a clinician of appropriate expertise to assess the nature and etiology of the Veteran's back disability. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. That review must be noted in the report. A complete history of symptoms should be elicited from the Veteran. The examiner must address whether it is at least as likely as not (probability of 50 percent or more) that any diagnosed back disabilities had their onset in service or are otherwise related to the Veteran's service, including his documented back injury during service in 1986, or manifested within one year of service. *The examiner is advised that a rationale based solely on the absence of documentation of treatment for back symptoms until 2012 will not be adequate for adjudicating this matter. The examiner should consider the Veteran's lay statements regarding a continuity of back symptoms since his back injury during service and that he treated these symptoms for several years using heating pads and over-the-counter medications before seeking formal treatment. 4. Schedule the Veteran for a VA examination with a clinician of appropriate expertise to assess the nature and etiology of the Veteran's hypertension. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. That review must be noted in the report. A complete history of symptoms should be elicited from the Veteran. Thereafter, the examiner is requested to provide a fully articulated medical opinion with respect to the following: (a.) Is it at least as likely as not (probability of 50 percent or more) that the Veteran's hypertension is proximately due to or caused by service-connected PTSD, to include chronic sleep impairment? (b.) Is it at least as likely as not (probability of 50 percent or more) that the Veteran's hypertension is aggravated by service-connected PTSD, to include chronic sleep impairment? *In addressing secondary service connection, the examiner must provide separate opinions for causation and aggravation. *Please note that a recent precedential decision by the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019) held that aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability only an incremental worsening. In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. (Continued on the next page) Rationale for any opinions expressed should be provided. If an opinion cannot be provided without resort to speculation, the examiner should state why an opinion cannot be provided. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.