Citation Nr: 21067455 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 13-33 862A DATE: November 4, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include depression and/or anxiety, is denied. Entitlement to service connection for a substance abuse disorder, to include as proximately due to or aggravated by an acquired psychiatric disability, is denied. Entitlement to service connection for congestive heart failure (CHF), to include as proximately due to or aggravated by a substance abuse disorder, is denied. Entitlement to service connection for atrial fibrillation, to include as proximately due to or aggravated by a substance abuse disorder, is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that any acquired psychiatric disability had its onset during active service; is the result of an event, injury, or occurrence during active service; or was aggravated by active service. 2. The weight of the evidence is against a finding that the Veteran's substance abuse disorder had its onset during active service; is the result of an event, injury, or occurrence during active service; was aggravated by active service; or was proximately caused or aggravated by a service-connected disability. 3. The weight of the evidence is against a finding that the Veteran's congestive heart failure (CHF) substance abuse disorder had its onset during active service; is the result of an event, injury, or occurrence during active service; was aggravated by active service; or was proximately caused or aggravated by a service-connected disability. 4. The weight of the evidence is against a finding that the Veteran's atrial fibrillation had its onset during active service; is the result of an event, injury, or occurrence during active service; was aggravated by active service; or was proximately caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria of service connection for an acquired psychiatric disability, to include depression and/or anxiety, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria of service connection for a substance abuse disorder, to include as proximately due to or aggravated by an acquired psychiatric disability, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria of service connection for congestive heart failure (CHF), to include as proximately due to or aggravated by a substance abuse disorder, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria of service connection for atrial fibrillation, to include as proximately due to or aggravated by a substance abuse disorder, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1963 to September 1966. These matters originate from appeal of a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), and return to the Board of Veterans' Appeals (Board) following a June 2021 Board remand. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2021 the Board directed that the Veteran be afforded a VA examination to address the etiology of his claimed acquired psychiatric disability and/or substance abuse disorder. As discussed further below, a VA examination was obtained in July 2021. Accordingly, the Board finds that there has been substantial compliance with its June 2021 remand directives and adjudication on the merits is appropriate. The instant appeal arises from a June 2012 claim of service connection for, in pertinent part, an acquired psychiatric disability or disabilities characterized as "depression/anxiety", atrial fibrillation, congestive heart failure (CHF), and substance abuse (substance abuse disorder). As discussed further below, the Veteran contends that his claimed acquired psychiatric disability had its onset during service; and that his substance abuse disorder is the result of the acquired psychiatric disability that had its onset during service (i.e., that he began abusing substances to self-treat his acquired psychiatric disability). See 08/16/2012, VA 21-4138 Statement in Support of Claim, p. 1. Also as discussed further below, the record reflects that the Veteran's atrial fibrillation and CHF are the result of his substance abuse disorder. See 02/13/2021, C&P Exam, pp. 1- 2; 02/13/2021, C&P Exam, Heart Conditions Disability Benefits Questionnaire, p. 2. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection is not available for a disability that is the result of a veteran's willful misconduct or the result of his abuse of alcohol or drugs.38 U.S.C. § 1110;38 C.F.R. § 3.303. However, service connection may be granted for substance abuse that is a secondary to or is caused by a primary service-connected disorder. Allen v. Principi,237 F.3d 1368, 1381(Fed. Cir. 2001). To establish secondary service connection, a Veteran must provide evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond its natural progression by a service-connected disability. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439, 446 (1995); 38 C.F.R. § 3.310. Thus, the Veteran's claims turn on whether his claimed acquired psychiatric disability had its onset in, or is the result of, his active service. 1. Entitlement to service connection for an acquired psychiatric disability, to include depression and/or anxiety, is denied. A March 2021 VA examiner documented diagnoses of unspecified depressive disorder and a substance use disorder characterized as being in sustained remission. 04/07/2021, C&P Exam, p. 1. VA treatment records generated in March 2018, August 2018, and January 2019 similarly reflect diagnoses of major depressive disorder and substance use disorder (in remission). 10/23/2019, CAPRI, pp. 355, 439, 552. Accordingly, the Board finds that the "current disability" element has been satisfied. The remaining question is whether the Veteran's acquired psychiatric disability had its onset during his period of active service, or is the result of an even, injury, or occurrence during active service. In August 2012 VA received a written statement from the Veteran reflecting that upon entry into active service he began feeling "emotionally disturbed", "devastated", and afraid that he would be sent to serve in Vietnam. 08/16/2012, VA 21-4138 Statement in Support of Claim, p. 1. In this regard, the Board acknowledges that the Veteran is competent to report phenomena observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). However, VA must consider all medical and lay evidence of record and make appropriate determinations of competence, credibility, and weight. 38 U.S.C. § 5107; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran's service treatment records (STRs) do not reflect any complaints of, treatment for, or diagnoses of an acquired psychiatric disability. A July 2021 VA examiner opined that the Veteran's "current emotional distress" is the result of events occurring after his discharge from active service. The examiner's opinion reflects consideration of VA treatment records from throughout the period on appeal, in particular the Veteran's own statements to treating providers. In December 1997 a treating provider at a state correctional facility documented the Veteran's report of having lost his appetite and having trouble staying asleep; the provider noted that the Veteran seemed to have become depressed due to his recent sentencing. 11/30/2012, Medical Treatment Record Non-Government Facility, p. 66. In January 1998 the Veteran reported feeling "extremely depressed recently" and attributed his depressed mood to the length of his sentence. Id. pp. 72, 74. In September 1998 a treating provider characterized the Veteran as "obviously in distress over the longevity of his sentence." Id. p. 72. In March 2011 the Veteran reported to a non-VA treating provider that he attributed his depression and anxiety to his criminal record and period of incarceration. 12/14/2012, Medical Treatment Record Government Facility, p. 38. An April 2011 VA treatment note reflects that the Veteran reported "continuing depressed mood related to being estranged from his... children." 02/15/2013, CAPRI, p. 26. In June 2011 the Veteran reported to VA treating providers that he had "depressed mood and regret and concern" due to the impact of his actions on one of his children and her mother. 06/08/2021, CAPRI, p. 26. In March 2021 the Veteran reported that his mood was "fairly good with some down periods when he laments the functional limitations" caused by his neuropathy. 08/13/2021, CAPRI, p. 30. The Board notes that statements made for the purpose of medical diagnosis or treatment are exceptionally credible because the declarant has a strong motive to tell the truth in order to receive proper medical care. See White v. Illinois, 502 U.S. 346, 356 (1992). The Board acknowledges a February 2021 VA examination report in which the examiner wrote the following statements: "[I]t cannot be ignored that his substance abuse arose or was exacerbated by the fear, anxiety, stress and depressive symptoms related to active duty and the knowledge that the [V]eteran may be deployed to Vietnam." 02/13/2021, C&P Examination, Medical Opinion Disability Benefits Questionnaire #1, p. 2 "[I]t is imperative to recognize and understand the duress, anxiety and depression faced by active-duty members of the military . . . the mental health condition leading to substance abuse was likely severely exacerbated by active-duty service." 02/13/2021, C&P Examination, Medical Opinion Disability Benefits Questionnaire #2, p. 2. However, the Board finds these statements to be of limited probative value as to the etiology of the Veteran's acquired psychiatric disability. Indeed, the probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the February 2021 examiner's statements were not offered in the context of a mental health or psychiatric examination; rather, the examination being performed was in relation to the Veteran's atrial fibrillation and CHF claims. The February 2021 examiner's report does not reflect a review of the Veteran's medical history as it relates to his claimed acquired psychiatric disability. Moreover, the February 2021 opinion was authored by an osteopathic physician with a specialization in General Medicine, whereas the July 2021 VA opinion was authored by a mental health specialist with a doctoral degree in psychology. Based on the foregoing, the Board concludes that the weight of the evidence is against a finding that the Veteran's acquired psychiatric disability had its onset during his period of active service, or is the result of an event, injury, or occurrence during his period of active service. Accordingly, the Board concludes that the criteria for entitlement to service connection for an acquired psychiatric disability are not met, and the same is hereby denied. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. Entitlement to service connection for a substance abuse disorder The Veteran's claimed substance abuse disorder is not eligible for service connection unless it is secondary to or is caused by a primary service-connected disorder. 38 U.S.C. § 1110; Allen v. Principi,237 F.3d 1368, 1381(Fed. Cir. 2001); 38 C.F.R. § 3.303. Service connection is in effect for hearing loss and tinnitus. There is no evidence to reflect that the Veteran's substance abuse disorder is secondary to or caused by his hearing loss and/or tinnitus, nor has he claimed such. Accordingly, the Board concludes that the criteria for entitlement to service connection for a substance use disorder are not met, and the same is hereby denied. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. Entitlement to service connection for congestive heart failure (CHF) and atrial fibrillation are denied. As discussed above, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish secondary service connection, a Veteran must provide evidence of (1) a current, non-service-connected disability, (2) a current service-connected disability, and (3) evidence that the non-service-connected disability is either (i) proximately due to or the result of a service-connected disability or (ii) aggravated (increased in severity) beyond its natural progression by a service-connected disability. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439, 446 (1995); 38 C.F.R. § 3.310. The Veteran's STRs do not reflect any complaints of, treatment for, or diagnosis of CHF and/or atrial fibrillation. A January 2009 note by a private treating provider describes a cardiac history beginning in the "mid 1980s" when the Veteran presented to the hospital with chest pain and shortness of breath. 12/21/2009, Medical Treatment Record Non-Government Facility, p. 8. In February 2021 a VA examiner stated that the Veteran had been diagnosed with CHF and atrial fibrillation and that his "abuse of drugs and alcohol were in direct causation" of his CHF and atrial fibrillation. 02/13/2021, C&P Exam, Medical Opinion Disability Benefits Questionnaire #1, p. 2. In light of the foregoing, the Board concludes that the criteria for entitlement to service connection for a congestive heart failure and atrial fibrillation are not met, and the same are hereby denied. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.