Citation Nr: 21072833 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 14-11 566 DATE: December 6, 2021 ORDER Entitlement to service connection for substance abuse as secondary to service connected posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran's substance abuse was aggravated by service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for substance abuse as secondary to service connected PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 2005 to October 2009. This matter comes before the Board of Veterans' Appeals (Board) following February 2018 and June 2021 Board Remands and a January 2020 Board Decision. This matter was originally on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2017, the Veteran testified at a hearing before the undersigned. A transcript of the hearing is of record. 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). Service connection may also be granted through the application of statutory presumptions for chronic conditions, which includes arthritis. See 38 C.F.R. §§ 3.303(b), 3.309(a) (2019); see also 38 U.S.C. §§ 1112, 1137 (2012). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303(b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. § 3.307(a)(3) (2019). The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Additionally, service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2019). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012). 1. Entitlement to service connection for substance abuse, to include as due to posttraumatic stress disorder (PTSD) The Veteran contends she is entitled to service connection for alcohol abuse disorder, secondary to her service-connected PTSD. The Veteran's service treatment records (STRs) show the Veteran reported she did not abuse alcohol in October 2005 and March 2006. In October 2007 the Veteran reported alcohol use, and in August 2008 she reported a history of alcohol abuse. A December 2013 VA treatment note indicates the Veteran reported she had not had any alcoholic drinks in the past year. In September 2015 the Veteran reported no substance abuse. In September 2016 the Veteran stated she occasionally used alcohol. In an August 2017 treatment note the Veteran stated she drank alcohol two to four times per month in the past year and reported she had one or two in a day when drinking in the past year, but she never drank six or more drinks on one occasion in the past year. At the September 2017 Board hearing the Veteran described using alcohol to deal with her PTSD and when she would get headaches she tried to have a drink to get rid of the headaches, but her other medications were not meant to be mixed with alcohol. The Veteran stated she is still receiving treatment and trying different over the counter drugs but right now it is more of a struggle of substance abuse with the alcohol and medication because it causes blackouts. The Veteran stated that she does not have a husband there to testify because the day he was going to propose it was around the holidays right before Christmas and she mixed alcohol and the prescription drugs causing her to black out and he did not have a chance to propose in front of the family, so the drinking affects her life. A July 2018 treatment record showed the Veteran denied having an alcoholic drink in the past year. A March 2019 VA treatment note indicated the Veteran had occasional alcoholic drinks per day. In a February 2019 treatment note the examiner indicated the Veteran reported she did not experience substance abuse. An August 2019 VA treatment note shows the Veteran denied extreme stress, depression, drug abuse, and alcohol abuse. The examiner noted her alcohol screening test was negative and stated in the past year the Veteran had drinks two to four times per month. The examiner further stated that when drinking she had one or two drinks, and she never had six or more drinks on one occasion in the past year. In an October 2019 statement the Veteran stated that alcohol and marijuana were coping mechanisms for stressful events that she did not want to talk about for fear of judgment or embarrassment. She stated she sought help with alcoholics and narcotics anonymous groups in the past and has suffered relationship conflicts. The Veteran stated although lifestyle can produce a lot of stress with work and kids, she does not think they are a cause for past and previous struggles with addiction. She maintained that "[e]ven when I did not abuse a substance during pregnancy and breast feeding, I realized that I compulsively shopped as an alternative, which led to financial and marital conflict" most recently prescription drug abuse. The Veteran also stated she had past substance abuse and treatment prior to military service as a minor. In June 2021 the Board remanded the Veteran's claim noting that the August 2019 examination was found to contain internally inconsistent medical opinions that found that the Veteran's PTSD and alcohol use disorder were co-morbid and interacted to "create a synergistic effect" and also found that the substance abuse disorder was not caused or aggravated by her PTSD. Additionally, the examiner's rationale provided to support the negative nexus opinion consisted of factual statements with a conclusion. There was no medical reasoning provided to support the examiner's conclusion. The June 2021 Board remand directed the AOJ to obtain an addendum opinion to the August 2019 VA examination report. In an August 2021 VA opinion the examiner stated the Veteran had a history of substance use as a teenager including methamphetamine and inpatient psychiatric treatment that preceded her enlistment. This constitutes a more likely than not high baseline level of severity of her substance abuse prior to enlistment. She reported current regular cannabis use and alcohol use that does not rise to the level of impeding her work performance. There is no strong evidence that her current substance use is significantly aggravated from her level of substance use prior to enlistment. The examiner then stated the Veteran's substance abuse issues that clearly and unmistakably existed prior to her military service were more likely than not aggravated beyond the natural progression by her service-connected PTSD as it is impossible to rule out her anxiety associated with PTSD as contributing to her current substance use to some degree. An addendum opinion was offered in September 2021. The September 2021 examiner stated that the Veteran's substance use was less likely than not due to or the result of the PTSD as it existed prior to service. The examiner maintained that the VA language that is required makes it impossible to answer this question with any nuance. The Veteran clearly had substance issues prior to enlistment. Her current substance abuse is not clearly aggravated beyond its natural course. She has had periods of remission and relapse which is common for most individuals with substance abuse issues. Additionally, the Veteran is service connected for PTSD and it is impossible to say that there is no contribution of her PTSD to any current substance use since anxiety symptoms typically drive some degree of substance use through a negative reinforcement paradigm. The examiner stated PTSD is not likely the primary driver of her substance use, but he cannot say it is not contributing at all. All of these things are true, but the specific language required by VBA makes it impossible to answer these questions the way they are asked. The Veteran had a history of substance use as a teenager including methamphetamine and inpatient psychiatric treatment that preceded her enlistment. This constitutes a more likely than not high baseline level of severity of her substance abuse prior to enlistment. She reported current regular cannabis use and alcohol use that does not rise to the level of impeding her work performance. There is no strong evidence that her current substance use is significantly aggravated from her level of substance use prior to enlistment. The examiner also stated STRs in 2008 report a history of alcohol abuse. Records from 2011 document a report of alcohol abuse and cannabis use at that time. In records from 2015 the Veteran reported substance abuse as a teenager and the Veteran reported inpatient psychiatric treatment at 16 years old at the current evaluation. At a 2017 Board hearing, the Veteran reported methamphetamine abuse in high school. Other records since her separation from service document periods where the Veteran reported sobriety and abstinence from substances but at the current exam the Veteran stated she often lied to healthcare providers in the past regarding her substance use. Additionally, the examiner stated the Veteran continues to meet the clinical diagnosis of PTSD under the DSM-5 diagnostic criteria based on diagnostic clinical interview from this examination. She also meets the criteria for Alcohol Use Disorder, mild and Cannabis Use Disorder, moderate. Her substance abuse issues that clearly and unmistakably existed prior to her military service were less likely than not aggravated beyond the natural progression by her service-connected PTSD. This opinion is based on review of the Veteran's VBMS eFolder with military service treatment and personnel records, CPRS mental health treatment records, DSM-5 diagnostic criteria, subjective report of symptoms, diagnostic clinical interview and training and experience of this examiner. The Board finds that it is indisputable that the Veteran's substance abuse pre-existed her PTSD. In regard to aggravation, the September 2021 examiner opined that the Veteran's current substance abuse is not clearly aggravated beyond its natural course. Additionally, the examiner stated the Veteran is service connected for PTSD and it is impossible to say that there is no contribution of her PTSD to any current substance use since anxiety symptoms typically drive some degree of substance use through a negative reinforcement paradigm. The examiner stated PTSD is not likely the primary driver of her substance use, but he cannot say it is not contributing at all. Resolving reasonable doubt in favor of the Veteran, the Board finds service connection for aggravation of substance abuse by PTSD is warranted. In so finding, the Board notes that although 38 C.F.R. § 3.310(b) indicates that VA will not concede aggravation unless the baseline severity of the nonservice-connected disease or injury is established, the next sentence indicates that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board is not bound by the RO's determination that aggravation is not present, and as the Board does not assign ratings in the first instance, the Board reads 38 C.F.R. § 3.310(b) as permitting the Board to determine whether service connection on an aggravation basis is warranted, with the RO having the responsibility for determining the degree of aggravation in assigning the rating. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Daley, 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.