Citation Nr: 21068505 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-46 768 DATE: November 10, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, is denied. FINDING OF FACT The Veteran's acquired psychiatric disorder is the result of his own willful misconduct and was not caused or aggravated by service or a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1976 to January 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision. The Board notes that a July 2020 Supplemental Statement of the Case (SSOC) was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran appealed the decision filing a VA Form 10182: Notice of Disagreement (NOD) opting into the Appeals Modernization Act (AMA) system on January 9, 2021. The Veteran was required, under the regulations, to opt-in to the AMA system within 60 days of the SSOC. However, the Veteran's NOD was received after the time limit had expired. Accordingly, the Veteran's claim will continue under the legacy review system. The Board notes that the claim identified above as the claim of entitlement to service connection for an acquired psychiatric disability was adjudicated by the RO as a claim of entitlement to service connection for schizophrenia in the July 2015 rating decision. However, given the complex nature of mental health disabilities and the evidence of record; the Board previously re-characterized the issue on appeal as a claim of entitlement to service connection for an acquired psychiatric disorder pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). In April 2019, the Board remanded this matter for additional development. As will be discussed below, the Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 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). Direct service connection may be granted only when a disability was not the result of a veteran's abuse of alcohol or drugs. See 38 U.S.C. § 105; 38 C.F.R. § 3.301. Although a substance abuse disability cannot be service-connected on the basis of its incurrence or aggravation in service, the law does not preclude a veteran from receiving compensation for a substance abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. Specifically, claimants are only entitled to secondary service connection if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Such a benefit will only result "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." Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). 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 be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that he has a current diagnosis of an acquired psychiatric disorder that manifested during active service, was aggravated by his active service, and subsequently worsened after separation from active service. After review and consideration of the evidence of record, the Board finds that service connection for an acquired psychiatric disorder is not warranted. Specifically, the Board notes that the first requirement for service connection, a current disability during the appeal period beginning in August 2014, is not evident. A careful review of the Veteran's service treatment records (STRs) and military personnel records does not show any evidence of complaints, treatment for symptoms of or diagnosis of a psychiatric disorder during service. The Veteran's service personnel records document that the Veteran was ordered by the court to undergo 12 sessions of alcohol abuse training. In a January 1982 Report of Medical Examination, prepared at service separation, a clinical psychiatric evaluation was normal and there was no indication that the Veteran had any psychiatric symptoms. Similarly, in the Report of Medical History, completed by the Veteran on the same date, he specifically denied "frequent trouble sleeping," "depression or excessive worry," or "nervous trouble of any sort." Further, the Veteran's service personnel records indicate that the Veteran was commended for heroic actions as a submarine engineer. His performance evaluations repeatedly reflected exceptional leadership abilities with a dedicated and cheerful attitude under dangerous conditions. The Veteran advanced rapidly in rank being promoted to the E6 level within a 6-year period of time. In April 1985, the Veteran was admitted to the VA Alcohol Detox unit for his first admission for alcohol abuse. The Veteran reported that he had no prior treatment for alcohol problems other than Alcoholics Anonymous. He advised his treating clinician that he had his first drink at age 19 while in the service and his drinking became a problem at age 24 after service separation when he drank a fifth of gin on a daily basis. He had been arrested for public intoxication and driving while intoxicated. He was discharged from the Alcohol Detox unit one month later with the diagnosis of alcohol dependence with no Axis II or III diagnoses. December 1985 aftercare visits document that the Veteran had returned to alcohol use. In November 1986 the Veteran submitted a Statement in Support of Claim indicating that he was enrolled at the University of Pittsburg pursuing an engineering degree. February and May 1987 VA treatment records indicate that the Veteran was re-admitted to the Alcohol Detox Unit with an initial diagnostic impression suggestive of schizophrenia or schizoid personality disorder. He left the unit after72 hours in February and was readmitted in May. After a several-day stay in May 1987, the Veteran again left the unit and took his medical chart with him. His discharge diagnoses were alcohol dependence, episodic, alcohol withdrawal, and probable schizoid personality disorder. In July 2000, the Veteran's employer brought him to the VA for inpatient detoxification. He was discharged home in August 2000 with diagnoses of alcohol dependence with continuous alcohol intoxication and alcoholic liver disease. In September 2004, the Veteran was admitted to the detoxification unit with his wife reporting that he was drinking a pint of Vodka per day and also drinking Nyquil. The clinicians noted that his past psychiatric history included 4 prior admissions for alcohol detox and a 60-day inpatient rehabilitation stay in 2000. In August 2014, the Veteran filed a claim for service connection for schizophrenia. VA psychotherapy treatment notes from December 2015 through May 2016 mention the Veteran's daily cravings for alcohol, additional admissions for alcohol detoxification in 2009 and September 2014, and the Veteran's worry about the possibility of a relapse, disagreement with family about buying his mother's condominium, and heavy drinking with bizarre behavior since his gravely ill mother was hospitalized. An unsigned narrative note in May 2016 coincident with the Veteran's admission to the inpatient psychiatric unit of the VAMC indicates that the Veteran's sister brought him to VA as she was selling their mother's condominium where the Veteran had been living for many years. His sister indicated that he had been diagnosed with schizophrenia. The Veteran was treated by a multidisciplinary mental health team and the ongoing peer counselor treatment notes checked "schizophrenia, paranoid." In April 2018 the Veteran submitted a letter from a certified rehabilitation counselor indicating that the Veteran was hospitalized in 1987 and received a diagnosis "suggestive of schizophrenia." He further stated that since the natural history of schizophrenia is that it occurs at a relatively young age of adulthood, it is reasonable to assume a "possibility" that he had the beginnings of the disorder during his military service in 1976 to 1982. In July 2018 the Veteran underwent a VA examination for residuals of traumatic brain injury (TBI) that occurred in-service in 1978. The neurologist examiner specifically noted the Veteran's history of alcoholism and found the Veteran to have no neurobehavioral effects, full orientation, no evidence of impairment of memory, attention, concentration or executive functions, and normal judgment and social interaction. He concluded that the residuals attributable to TBI were limited to headaches, including migraine headaches, and did not endorse any behavioral, emotional, or cognitive mental disorder. A VAMC Report of Hospitalization indicates that the Veteran was admitted to the hospital in September 2019 to a substance abuse residential rehabilitation program. In December 2019, the Veteran's VA treating psychiatrist of over three years offered a firm opinion that prescribing the Veteran medications for the treatment of schizophrenia would be incongruent with the facts of the case and constitute medical malpractice. In accordance with the Board's April 2019 remand directives, the Veteran was afforded A VA mental disorders examination including an in-person interview and review of treatment records in December 2019. The examiner solely endorsed the diagnosis of alcohol use disorder, in remission. No cognitive/emotional consequences of the Veteran's traumatic brain injury were evident given normal psychological testing results and the Veteran's ability to earn a degree in engineering post-service. The examiner noted no evidence of the Veteran struggling with mental health symptomology in service and pointed to his STRs in total, including his normal psychiatric examination upon separation and the Veteran's Report of Medical History in which he denied all psychiatric symptoms. While the Veteran confided that he was drinking in the Navy, he mentioned that he often stayed on the submarine during off duty hours to avoid the temptation of alcohol consumption. The examiner noted that the Veteran rose to a high rank in a short time which would not have been attainable if he had alcohol dependence. As for the Veteran's diagnosis of schizophrenia, the examiner noted that his mood/schizophrenia symptoms were only apparent with his alcohol consumption. The Veteran had immediately discontinued taking the psychotropic medications prescribed for schizophrenia by another clinician as it made him feel worse. The examiner noted a thorough assessment of the Veteran's longstanding VA psychiatrist who concluded that the earlier schizophrenia diagnosis was in error and cautioned that symptoms characterized by other clinicians as symptoms of schizophrenia were only evident when the Veteran was intoxicated. In conclusion, the examiner found that the Veteran did not have a current diagnosis of schizophrenia or any other acquired psychiatric disorder that was incurred in, caused, or aggravated by military service. Further, he confirmed that schizophrenia does not cause alcohol use disorder and, alcohol use disorder does not cause schizophrenia. In June 2020, a VA case manager noted a diagnosis of severe alcohol use disorder, discharge from the recovery care program due to missed attendance and no response to outreach, and contact initiated by the Veteran's family regarding his emaciated appearance. A clinical social worker subsequently visited the Veteran's apartment and found him drinking with two friends. The case manager noted the Veteran's inability to care for himself due to a relapse into alcohol abuse as the Veteran admitted to binging on alcohol for a month. The Board notes that the firmly stated diagnostic opinion of the Veteran's longstanding VA psychiatrist and the opinion of the VA examiner undermines the competency and probative value of the schizophrenia notations, rendered for a period between two decades of recurring inpatient admissions for alcohol detoxification with subsequent relapses, supports the conclusion that the diagnosis of severe alcohol dependency provided in the psychiatric examination is the proper, formal diagnosis. Based on the foregoing, the Board finds that the competent and credible evidence of record establishes that the Veteran's only current psychiatric diagnosis is that of alcohol use disorder. As the only valid psychiatric diagnosis of record is an alcohol use disorder, the Veteran's claim for direct service connection must be denied. VAOPGCPREC 2-98 (Feb. 10, 1998); VAOPGCPREC 2-1997 (Jan. 16, 1997). The law states that service connection cannot be established on a direct basis for a disease or injury that results from a claimant's abuse of alcohol or drugs, as such abuse constitutes willful misconduct. 38 C.F.R. §§ 3.1(m), 3.301(a). Moreover, when, as here, the law is dispositive of the claim, it should be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). As such, direct service connection for the diagnosed alcohol use disorder must be denied as a matter of law. While direct service connection for the diagnosed alcohol use disorder is precluded as a matter of law, it is possible for service connection for an alcohol use disorder to be awarded on a secondary basis, if the alcohol use disorder was caused or aggravated by another service-connected disability. 38 C.F.R. § 3.310; VAOPGCPREC 2-98 (Feb. 10, 1998). However, in this case the Veteran does not contend, and the evidence including a medical opinion regarding the residuals of his TBI, do not support that his alcohol use disorder is in any way related to his service connected TBI. In addition, the December 2019 VA mental disorders examiner's opinion provides that there were no cognitive emotional consequences of the Veteran's traumatic brain injury aside from his service-connected migraine headaches. Second, the VA examiner stated that, based on the Veteran's extensive treatment records, his alcohol use disorder had followed the same pattern and course as alcohol use disorders observed in individuals without additional disabilities. There is no evidence that the treating or opining examiner psychiatrist were not competent or credible, and their opinions were based on a complete review of the Veteran's medical history. The Board finds that the opinions of the treating psychiatrist, and VA psychiatry and neurology examiners are entitled to significant probative weight as to whether the Veteran's alcohol use disorder was caused or aggravated by his service-connected disabilities. Nieves-Rodriguez, 22 Vet. App. 295. No other medical opinions concerning causation or aggravation of the Veteran's alcohol use disorder are of record. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder. While the Veteran is competent to report various psychiatric symptoms, such as depression or anxiety, he is not competent to affirmatively diagnose himself with a psychiatric disorder. Jandreau, 492 F.3d at 1372. As such, the issue of whether the Veteran has a current acquired psychiatric disorder must be determined based on the medical evidence of record. Although the Veteran has established a current disability the first requirement for service connection, direct service connection for an alcohol use disorder is precluded as a matter of law. Further, secondary service connection is not for application as the preponderance of the evidence weighs against a finding that the alcohol use disorder was caused or aggravated by another service-connected disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. For these reasons, the claim is denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, Associate 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.