Citation Nr: 21071157 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-11 743 DATE: November 29, 2021 ORDER Service connection for alcohol use disorder is denied. FINDING OF FACT The weight of the evidence is against finding that the Veteran's alcohol use disorder is due to or caused by any service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for alcoholism, as secondary to a service connected acquired psychiatric disorder (APD), have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1974 to April 1975. In December 2019, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Service connection for alcohol use disorder is denied. The Veteran asserts that his acquired psychiatric disorder is due to his active-duty service. He testified at his December 2019 hearing that he joined the military because he wanted to fight. However, after he joined the military, he stated that all his fellow service members did was drink and smoke weed and that he did not want to go into a foxhole with them. He testified that he had to break command and get out of there. The Board notes that his service treatment records (STRs) are silent for any complaints, treatment, or diagnosis for any mental health disorders. In May 2020, the Veteran's sister, a registered nurse, provided a lay statement regarding the Veteran's mental health. She recalled that he went AWOL, while in the military, and that he reported that he did not want to go into the fox hole because he was fearful that he would not ever come out. She opined that in her professional opinion, his anxiety related back to his traumatic experience in the military. She also wrote a second letter in which she indicated that the Veteran had significant learning and cognitive problems his whole life. This appeal was most recently before the Board in July 2021. The Board noted that the Veteran's post-service treatment records showed that he has been diagnosed with major depressive disorder (MDD). See VA Treatment Record dated October 16, 2015. The Board points out that the diagnosis for MDD was made by a social worker rather than a medical doctor. The Board also acknowledged that the Veteran's sister, a registered nurse, provided a positive nexus opinion. However, the July 2021 Board decision found that her medical opinion was not supported by a sufficient rationale, as there was no explanation as to why she believed his anxiety related back to his military service. Moreover, there was no indication that the Veteran's sister has specific psychiatric training. The Board remanded the issue to afford the Veteran with a VA examination to determine the nature and etiology of his APD, if in fact one was supported by the evidence of record. The Veteran was afforded a VA examination in September 2021. The Veteran reported that he began abusing alcohol during his military service. After an in-person examination and a review of the Veteran's claims file, the examiner found that the Veteran was only diagnosed with alcohol use disorder. The examiner noted a review of the Veteran's post-service treatment records, which included notations of alcohol and marijuana use disorders, depression, anxiety, and adjustment disorder. After the in-person examination and the review of the claims file, the examiner provided a negative nexus opinion. The examiner reported that the Veteran's mental health symptoms, including depressed mood, are likely due to his severe, chronic, long-term alcohol abuse, rather than any specific trauma occurring during military service. The examiner explained that the Veteran reported no significant military stressors to support a contention that his long-term, chronic alcohol abuse was caused by stressors experience during military service. The examiner concluded by reporting that it was more likely that his alcohol abuse during military service impaired his ability to perform military duties. Here, the Veteran was afforded a VA examination in September 2021, to determine the nature and etiology of any APDs. The examiner reviewed the Veteran's claims file and provided a rationale to support his medical opinion. As such, the Board finds that there was substantial compliance with the July 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board acknowledges that the Veteran's post-service treatment records showed that he was diagnosed with MDD. However, the MDD diagnosis was rendered by a social worker, not a psychiatrist or psychologist. On the other hand, the September 2021 VA examiner is a Ph.D. in psychology. The Board affords more probative weight to the September 2021 VA examiner because he has been trained specifically to diagnose and treat mental health disorders, whereas the social worker has not. Given the foregoing, the Board finds that the diagnosis for alcohol use disorder, and not MDD, is the most accurate and probative mental health diagnosis of record. Regarding alcoholism, 38 U.S.C. § 105 (a), as amended by section 8052(a) of the OBRA, prohibits a grant of "direct service connection" for drug or alcohol abuse on the basis of incurrence or aggravation in line of duty during service. Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351(1990); VAOPGCPREC 2-98 (Feb. 10, 1998). However, a Veteran may be service connected for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his or her service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Unfortunately, service connection is precluded under 38 U.S.C. §§ 1110, for primary alcohol/substance abuse. The Board acknowledges that service connection may be granted for alcohol/substance if such disability is secondary to a service-connected disability. However, the Veteran is not service connected for any disabilities. The Board acknowledges the Veteran's representative's October 2021 Appellate Brief. The representative acknowledged the September 2021 VA examiner's negative nexus opinion, but did not provide or point to any evidence that would otherwise undermine it. The representative asserted that the Veteran had provided credible and persuasive arguments, in support of his claim and that enough evidence had been presented to support the grant of service connection. The representative also asserted that the Veteran had shown a continuity of symptomatology. To the extent that the Veteran believes that he is diagnosed with an APD, which is due to his active-duty service, such a medical opinion requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the Veteran's assertions and the post-service treatment records that showed a diagnosis for MDD, the July 2021 Board decision remanded the issue to obtain a medical opinion. Unfortunately, the September 2021 VA examiner found that the only mental health diagnosis for the Veteran is alcohol abuse disorder. The Board acknowledges the positive evidence presented by the Veteran, namely the diagnosis for MDD and his sister's positive nexus opinion. However, the Board has previously discussed why those findings have been afforded very little probative weight. The Board would like to express that it is sympathetic to the Veteran's claim. It was in recognition of the positive evidence in his case that the Board remanded the claim in July 2021 for a medical opinion. The Board has also considered the Veteran's representative's assertions that the Veteran has shown a continuity of symptomatology and that enough evidence has been presented to grant service connection. However, the Board disagrees and finds weight of the evidence does not support granting service connection. The Veteran only has a diagnosis for alcohol abuse disorder; and service connection is precluded for primary alcohol abuse. Further, there are no other formally diagnosed APDs for which to grant service connection. Until the Veteran is granted service connection for an APD, or another disability, for which the alcohol abuse disorder is found to be secondary to, service connection cannot be granted. Regarding a continuity of symptomatology, the fact remains that primary alcohol abuse disorder cannot be service connected, even if it started during the Veteran's military service, and has persisted ever since. Accordingly, the weight of the evidence is against the Veteran's claim, and service connection for alcoholism is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.