Citation Nr: 21006995 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-19 552 DATE: February 8, 2021 ORDER Entitlement to service connection for schizoaffective disorder, bipolar type is granted. Entitlement to service connection for substance abuse disorder is granted. Entitlement to presumptive service connection of a mental illness for treatment purposes only under 38 U.S.C. § 1702 is dismissed. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his schizoaffective disorder, bipolar type began during active service. 2. Resolving reasonable doubt in the Veteran’s favor, his substance abuse disorder is proximately due to his service-connected schizoaffective disorder, bipolar type. 3. The appeal concerning entitlement to presumptive service connection of a mental illness for treatment purposes only under 38 U.S.C. § 1702 is rendered moot by reason of an equal or greater benefit having been established by the grant of service connection for schizoaffective disorder, bipolar type. CONCLUSIONS OF LAW 1. The criteria for service connection for schizoaffective disorder, bipolar type are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for substance abuse disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for dismissal of the appeal seeking presumptive service connection of a mental illness for treatment purposes only under 38 U.S.C. § 1702 have been met. 38 U.S.C. § 1702; 38 C.F.R. §§ 3.384, 17.109, 20.202 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army National Guard with a confirmed period of active duty training from June to October 1993 and a period of active duty from March 1995 to October 1996. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously remanded in February 2016, October 2019, and March 2020. It has since been returned to the Board for further appellate review. 1. Entitlement to service connection for schizoaffective disorder, bipolar type is granted. The Veteran asserts that he suffers from psychiatric disorders which arose during his active military service, following a significant in-service motor vehicle accident. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran’s medical records show some variability with regard to his diagnostic history, with diagnoses including schizophrenia, polysubstance abuse, adjustment disorder, bipolar disorder, schizoaffective disorder, and personality disorder. Private medical opinions from August 2020 and May 2019 diagnose schizoaffective disorder, bipolar type and schizoaffective disorder and bipolar disorder, respectively. VA and private treatment records also show an active psychiatric disorder during the relevant appeal period. The Veteran’s service treatment records confirm that he was in a serious motor vehicle accident in May 1996, and was administratively separated from service after being evaluated by the WAMC inpatient psychiatry service in August 1996 as having significant personality disorder with antisocial traits. It was noted that he was “likely to repeat AWOL.” Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence in favor of the claim includes private medical opinions from two different physicians in May 2019 and August 2020, who concluded that the Veteran’s schizoaffective and bipolar disorders more likely than not began in service and have continued to the present. They noted that the Veteran’s statements and lay statements provided by the Veteran’s family members demonstrate that he did not manifest mental health problems prior to his military service, and underwent a significant change in behavior following his in-service motor vehicle accident. The May 2019 opinion additionally addressed the in-service diagnosis of personality disorder, and explained that the Veteran’s description of his reaction and guilt over the accident demonstrates a sincere regard for the welfare of others, which is inconsistent with an antisocial personality disorder which is largely defined as lacking capacity for empathy. The evidence against the claim includes a VA medical opinion from April 2020, which found that the claimed psychiatric condition was less likely than not related to an in-service event or disease, and was more likely a result of a personality disorder and cocaine-induced mood disorder with psychotic features. She largely focused on the Veteran’s reports that he was physically abused during his childhood and a one-time report by the Veteran to a health care provider of childhood behavior supposedly consistent with conduct disorder, a pre-curser to Antisocial Personality. While the April 2020 report includes a statement that the May 2019 psychological assessment was considered in rendering the opinion, there is no further explanation concerning why the findings within the May 2019 report were not persuasive. The fact that the April 2020 opinion also does not address the Veteran’s and his family members’ lay statements concerning his behavioral shift following his in-service MVA or the medical treatise evidence cited by the May 2019 psychologist’s opinion further limits its overall probative value. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current schizoaffective disorder, bipolar type arose during service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for schizoaffective disorder, bipolar type is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for substance abuse disorder, as secondary to schizoaffective disorder, bipolar type, is granted. The United States Court of Appeals for Veterans Claims (“the Court”) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court held that in determining the scope of a claim, the Board must consider the Veteran’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. A claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of her condition, but rather, sufficiently files a claim for benefits “by referring to a body part or system that is disabled or by describing symptoms of the disability.” Brokowski v. Shinseki, 23 Vet. App. 79, 86 (2009). The Board is therefore considering the Veteran’s claim for service connection for a psychiatric disorder to include entitlement to service connection for a substance abuse disorder. For claims filed after October 31, 1990, service connection on a direct incurrence basis cannot be granted for disabilities resulting from abuse of alcohol or drugs. See 38 U.S.C. §§ 105, 1110, 1131; 38 C.F.R. §§ 3.1(n), 3.301. Further, in Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that compensation could not be awarded pursuant to 38 U.S.C. § 1131 and 38 C.F.R. § 105(a) either for a primary alcohol/drug abuse disability incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service. Id. at 1376. The Federal Circuit, however, further held that there can be service connection for compensation for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. In further clarifying this, the Federal Circuit explained that veterans may recover only if they can adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder. Id. at 1381. The Veteran’s treatment records demonstrate that he has a long history of substance abuse. He has consistently reported that he did not begin using alcohol or drugs until his motor vehicle accident in service and development of mental health issues. The private examination reports from August 2020 and May 2019 both conclude that the Veteran’s cocaine, alcohol, and cannabis use disorders are a result of the Veteran’s attempts to self-medicate his psychological symptoms, and that his substance abuse disorders are therefore secondary to his primary schizoaffective and bipolar disorder. While the April 2020 VA opinion instead concluded that the Veteran probably has cocaine-induced mood disorder with psychotic features, the physician appears to have given no consideration to the Veteran’s report of psychiatric symptoms in service prior to his use of alcohol or drugs. Upon review of the record, the Board finds that the weight of the evidence supports a finding that the Veteran’s substance abuse disorders are proximately due to his service-connected schizoaffective disorder, bipolar type. Accordingly, the Board finds that service connection for substance abuse disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. The appeal concerning entitlement to presumptive service connection of a mental illness for treatment purposes only under 38 U.S.C. § 1702 is dismissed. As entitlement to service connection for schizoaffective disorder, bipolar type and substance abuse disorders have been established, the issue of entitlement to service connection for a mental illness for purposes of establishing eligibility for VA treatment under 38 U.S.C. § 1702 is moot. See 38 C.F.R. § 17.37(b). The Veteran will be afforded equal or greater access to VA treatment by virtue of his now-established awards of service connection. See 38 U.S.C. § 1710; 38 C.F.R. § 17.36. As such, the appeal as to this specific issue is dismissed. See Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Solomon, 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.