Citation Nr: 21010143 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-27 534 DATE: February 24, 2021 ORDER As new and material evidence has been received, the claim for entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, mood disorder, depression, and anxiety (hereinafter “acquired psychiatric disorder”), is reopened. Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to polysubstance dependence, to include as secondary to acquired psychiatric disorder, is denied. FINDINGS OF FACT 1. In January 2014, the RO denied service connection for an acquired psychiatric disorder; the Veteran did not express timely disagreement or submit new and material evidence within one year, and the decision is final. 2. Evidence received since January 2014 is new and material because it relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for an acquired psychiatric disorder and raises a reasonable possibility of substantiating the claim. 3. An acquired psychiatric disorder did not manifest in active duty service and is not otherwise attributable to active duty service. An acquired psychiatric disorder of a psychotic nature was not diagnosed within one year of separation from active duty service. 4. The competent evidence of record fails to disclose that polysubstance dependence is attributable to any incidence of service. The competent evidence of record fails to disclose that polysubstance dependence was proximately caused by, or aggravated beyond its natural progression by, an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The January 2014 rating decision which denied service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2019). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. The criteria for entitlement to service connection for acquired psychiatric disorder have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019_ 4. The criteria for entitlement to service connection for polysubstance dependence have not been met. 38 U.S.C. §§ 1101, 1105, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303, 3.304, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Air Force from July 1988 to October 1989. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the Veteran’s claims file. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7104(b). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence. relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be credible for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Acquired psychiatric disorder In the January 2014 rating decision, in which the RO confirmed and continued a denial of service connection for an acquired psychiatric disorder, the RO considered evidence consisting of VA treatment records from two VA facilities, a letter from the Veteran, and a VA mental health examination report. The RO indicated that the evidence failed to disclose a qualifying diagnosis of an eligible mental health disorder that can be linked to the Veteran’s active duty service. Since January 2014, VA has received new and material evidence consisting of additional lay statements (via VA Form 21-4138), a lay statement associated with the March 2016 notice of disagreement (NOD), and hearing testimony. When considered within the low evidentiary standards laid out in Shade, this evidence is material to previously unestablished facts—a possible current eligible mental health disorder. Hence, this evidence raises a reasonable possibility of substantiating the acquired psychiatric disorder service connection claim. See 38 C.F.R. § 3.156(a). Although in the April 2019 statement of the case, the agency of original jurisdiction (AOJ) declined to reopen the case, it did evaluate the Veteran’s lay evidence. Therefore, the evidence is new and material and the Veteran’s service connection claim for an acquired psychiatric disorder is reopened. Threshold Issue: Polysubstance and Alcohol Abuse The law provides that no compensation shall be paid if a disability is the result of a Veteran’s own willful misconduct—the abuse of drugs and alcohol. See U.S.C. §§ 1105, 1110; 38 C.F.R. §§ 3.1(n), 3.301; see also VAOPGPREC 2-97 (January 16, 1997). The law also precludes compensation for primary polysubstance or alcohol abuse disabilities, and secondary disabilities that result from primary polysubstance or alcohol abuse. See Allen v. Principi, 237 F. 3d 1368 (Fed. Cir. 2001). Thus, in order for service connection to be granted for polysubstance or alcohol dependence, it must be established as secondary to, or a component of, a service-connected disability. Service Connection The Veteran contends that an acquired psychiatric disorder and polysubstance dependence were incurred in, aggravated by, or otherwise attributable to, active duty service. As to the latter claim, the Veteran also advances that it was proximately caused by, or aggravated beyond its natural progression by, an acquired disorder. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, including psychosis, will be presumed related to service if they were shown as chronic in service (or within a presumptive period) and there are subsequent manifestations of the same chronic diseases; or if they manifested to a compensable degree within a presumptive period following separation from service (in this case, one year); or if they were noted in service, with continuity of symptomatology since service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Evidence and Analysis The Veteran’s December 1987 enlistment report of medical examination fails to disclose an abnormal clinical evaluation of the Veteran’s psychiatric status. And, in his enlistment report of medical history, the Veteran indicated that he had not attempted suicide and not had (and did not have) frequent trouble sleeping; depression or excessive worry; or nervous trouble of any sort. As no mental health abnormalities were noted at entry, the Veteran is presumed sound. He enlisted at the age of 17 and turned 18 in June 1988. Although he would later report that he was bullied because of his size and age, he was five feet ten inches tall and weighed 140 pounds at entry. The Veteran competed recruit and specialty training as a security policeman. In an August 1988 STR, a clinician noted that the Veteran had two mental health visits that have no adequate explanation. In view of the Veteran’s prospective security duties, there are references to screening for the Personnel Reliability Program (PRP) for duties involving nuclear weapons, a likely reason for these visits. Upon the subsequent mental health evaluation of the same month, a clinician reported that psychometric testing was within normal limits and the Veteran was qualified for PRP duties. In a January 1989 certification consideration report, a physician referred to the August 1988 screenings and noted the Veteran was tested beyond normal test ranges based upon feelings of homesickness. This same month, a clinician indicated that the Veteran denied homicidal and suicidal ideations; denied experiencing hallucinations; denied alcohol abuse; and denied use of or experimental use of drugs. As such, the clinician reported that the Veteran did not have a mental health disorder. Service personnel records filed in connection with the Veteran’s administrative discharge note a series of ten minor military disciplinary infractions starting in late January 1989 through September 1989. These infractions ranged from failure to maintain a dormitory room, failure to report to his place of duty, issuance of a check with insufficient funds, missing dental appointment, drinking alcohol under the age of 21, and driving an automobile while intoxicated, the last two infractions occurred on September 24, 1989. On that day on September 24, 1989 emergency room (ER) report, a clinician reported that the Veteran came to the ER in a tremulous and delusional state, contending that he had taken sleeping pills. The Veteran appeared emotional and highly anxious. (A sergeant went to the Veteran’s room and found an empty bottle of over-the-counter (OTC) sleeping pills and a suicide note.) The clinician noted that the Veteran conveyed that he had consumed 7 bottles of beer. Emesis was elicited and a poison control test showed that the Veteran had not taken a toxic level of the OTC pills. The clinician provided assessments of suicidal gesture and alcohol intoxication. Upon interview, the Veteran admitted to thoughts of suicide and endorsed that he “wanted out” of his security police duties. According to the clinician, the Veteran was not able to convey any other psychosocial stressors. Upon this interview, this clinician indicated dysphoria but ruled out mood disorder (major depression) and adjustment disorder with depressed mood. Subsequent September 1989 comprehensive drug analysis testing was positive for ethanol. The Veteran was administratively from PRP duties in early October 1989 but for other than medical reasons. In an October 1989 memorialization of a telephonic encounter, a clinician noted that the Veteran was improving and no longer suicidal. At this time, this clinician provided an assessment of alcohol abuse by history and ruled out any mood components. The clinician deferred assessment of paranoid traits (which were noted by history). This same month, a clinical psychologist provided that the Veteran denied significant dysphoria; and the Veteran was functioning appropriately. At this juncture, the psychologist opined that the Veteran’s adjustment disorder with depressive mood had resolved. (In the body of this clinical note, the psychologist underlined the word “resolved”.) In the Veteran’s October 1989 separation/discharge report of medical examination, a clinician reported a normal clinical evaluation of the Veteran’s psychiatric status. In the associated report of medical history, the Veteran wrote that he “[felt] pretty well.” The Veteran indicated that he had attempted suicide. Moreover, the Veteran reported that he had had or had frequent trouble sleeping and depression or excessive worry. In the medical officer’s portion of this history, a clinician wrote that the Veteran endorsed that he has always had trouble falling asleep (since childhood). In a private consultation report of December 2000, a healthcare provider (authorship is not identified) noted that the Veteran had experienced highs and lows in mood since his teenage years. Also, the Veteran has had problems with alcohol abuse and drug misuse. The Veteran also had heard voices; had flown off the handle, and experienced irregular sleep cycles. And, the provider indicated that he suspected bipolar disorder. There was no report by the Veteran or reference to any events while on active duty. In a February 2006 lay account, the Veteran contended that he had bipolar disorder and mental disorders had manifested in service. The Veteran also contended that bipolar disorder “landed” him in prison. A review of VA treatment records from 2006 disclose that the Veteran participated in sobriety programs; however, these records also show that the Veteran returned to a substance cessation center for alcohol and drug abuse. A clinician opined that the Veteran has had a long history of substance abuse since adolescence; moreover, it was unclear whether the Veteran’s erratic behavior was due to psychological dysfunction or drugs. At this time, the clinician provided diagnoses of polysubstance abuse, alcohol abuse, and mood disorder NOS. A social worker noted that the Veteran reported that he had abused cocaine for 14 years. Also, the Veteran endorsed that he snorted, smoked, and injected amphetamines. This social work noted a history of bi-polarity; however, there is no indication from whence this history was derived. The Veteran was prescribed trazadone and lithium to control his symptoms; however, the efficacy of the latter drug could not be gauged as the Veteran did not follow the dosing schedule. The Veteran also had bouts of anxiety and experienced delirium during detoxification. In a January 2007 letter, the Veteran expressed his dismay at not being diagnosed properly. And, in several 2008 letters, the Veteran expressed his dismay that VA had not considered his 8 months of incarceration. A review of the Veteran’s VA progress notes through 2014 reflect those of VA treatment records. There are multiple notations concerning alcohol abuse and polysubstance abuse. As but one example, a VA clinician opined that the Veteran has an extensive history of polysubstance abuse and incarcerations. As to bipolar disorder, this clinician noted that the Veteran had been diagnosed with bipolar disorder in the past; however, it is difficult to clarify whether the Veteran’s manic states are due to chronic heavy substance abuse or due to mental health dysfunction. This clinician also provided an additional assessment of social phobia. This inconsistency concerning symptoms is prevalent throughout these progress notes. In January 2014, the Veteran was afforded a VA mental health disorders examination. A psychologist reviewed the claims file; considered the Veteran’s accounts; and conducted an appropriate evaluation. This psychologist provided but one diagnosis—polysubstance dependency, in early partial remission as per the Veteran’s account. Upon contemplation of the evidence and findings from the evaluation, this psychologist opined that the Veteran’s one current diagnosis (polysubstance dependency, in early partial remission as per the Veteran’s account) is less likely than not related to the Veteran’s active duty service and not related to notes in STRs related to treatment for depression (as discussed above). As rationale for this negative nexus opinion, the psychologist indicated that the Veteran endorses a very lengthy and chronic history of polysubstance dependency/abuse that began after his active duty service. This polysubstance dependency, according to the Veteran, has resulted in multiple negative consequences—frequent job losses, relationship difficulties, and significant legal issues. The Veteran has spent the better part of the last 10 years in prison due to crimes that he committed; and the Veteran has acknowledged that his criminal acts were done in order to support his drug habit. Therefore, given this extensive history of significant polysubstance abuse, opining as to any other diagnosis at this time for VA compensation purposes would be counterintuitive. In December 2015, the Veteran submitted another lay statement. In pertinent part, he emphasized his psychiatric issues during active duty service. The Veteran also articulated dismay at clinical findings. The Veteran reiterated these contentions in his March 2016 NOD and in a September 2016 lay statement. At the November 2020 Board hearing, the Veteran testified that there was bullying in service; however, he could not explain the reasons for his suicidal gesture on OTC sleeping pills. The Veteran also testified that he “deduced” a current diagnosis of bipolar disorder from reading materials and personal inquiry. In the words of the Veteran, he “knew what was wrong when he read the literature.” The Veteran indicated that he was not under mental health treatment because of his faith. One of Veteran’s representatives contended that that mental health diagnoses do not resolve; they merely fall into remission analogous to cancer. The Veteran was advised that a competent medical opinion to confirm that theory would be helpful, but none has been submitted. The Veteran believes that an acquired psychiatric is attributable to active duty. Moreover, the Veteran believes that his polysubstance dependence was proximately caused by, or aggravated by, this contented acquired psychiatric disorder. The Board has carefully considered the Veteran’s many lay statements and hearing testimony. Indeed, the Veteran is competent to provide observations as to that which is discernable. Nevertheless, as laypersons, the Veteran, as well as his representative who believes that mental health diagnoses do not resolve, merely fall into remission, lack the specialized psychological training to render opinions as to etiology, aggravation, or causation. See Jandreau, supra. Thus, the Veteran’s sincerely held belief in proximate cause and/or aggravation beyond natural progression does not constitute competent clinical/medical evidence, as it is far outside of his area of knowledge and expertise. Likewise, the representative’s conjecture as to psychological disorders does not constitute competent evidence for these selfsame reasons. The Board considered the Veteran’s military disciplinary infractions from January to September 1989 but finds that the medical and military supervisory evidence do not suggest that these infractions were manifestations of a mental health disorder but rather only failure to perform duties and comply with regulations including underage drinking and driving while intoxicated. The Veteran did not report bullying but rather that he just wanted to get out of Air Force service. While the record includes histories and assessments of psychological distress (homesickness, suicidal gesture, insomnia, anxiousness, mood disorders, social phobia, and bipolar disorder), the only constant sustained diagnoses are alcohol abuse and polysubstance abuse. Here, the record includes but one comprehensive mental health disorders examination (January 2014), otherwise the histories and assessments is in notations in VA treatment records, VA progress notes, and lay accounts. But, even these records and notes do not show any cognizable disorder over that of alcohol abuse and polysubstance abuse. The Board may favor the opinion of one competent medical examiner over that of another as long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert’s examination of the patient, the examiner’s knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. See Guerrieri v. Brown, 7 Vet. App. 467 (1993). Greater weight may be placed on one practitioner’s opinion over another depending on factors such as reasoning employed and whether or not and the extent to which they reviewed prior clinical records and evidence. See Gabrielson v. Brown, 7 Vet. App. 36 (1994). Furthermore, 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 (2003). Even taken as a totality, the VA treatment records and progress notes of record fail to provide a rationale for any conclusion reached. Moreover, it remains unclear whether the many VA clinicians who treated the Veteran reviewed the prior clinical records and evidence. Whereas, the January 2014 VA psychologist reviewed the claims file; considered the Veteran’s accounts; and conducted an appropriate evaluation. All of this objective and subjective evidence was incorporated the mental health disorders examination report. Moreover, this psychologist supported her negative nexus opinion with a rationale, which incorporated consideration of the totality of the record of evidence. This psychologist provided but one current diagnosis of polysubstance dependency—unrelated to the depression noted in STRs. And, according to this expert, given this extensive history of the Veteran significant polysubstance abuse, opining as to any other diagnosis for VA compensation purposes would be counterintuitive. The Board assigns significant probative weight to the opinion of this expert psychologist, which far exceeds the probative weight of the many VA clinicians who participated in the Veteran’s treatment. And, rather than using equivocating language as to a multitude of histories and assessments of psychological distress, this expert psychologist used clear language which was supported with evidence (or lack thereof). See Owens, Guerrieri, Gabrielson, Sklar, all supra. As noted above, the law provides that no compensation shall be paid if a disability is the result of a Veteran’s own willful misconduct—the abuse of drugs and alcohol. See U.S.C. §§ 1105, 1110; 38 C.F.R. §§ 3.1(n), 3.301; see also VAOPGPREC 2-97 (January 16, 1997). Indeed, for reasons articulated above, the weight of competent evidence discloses a standalone current diagnosis of polysubstance dependency, upon which service connection cannot be established. Moreover, the competent evidence of record fails to show that the Veteran was diagnosed with psychosis within one year of his separation from active duty service, so that establishing service connection on a presumptive basis is not warranted. See 38 C.F.R. §§ 3.307, 3.309. Lastly, as a matter of law, service connection cannot be established on a secondary basis when there is no disability upon which to derive proximate cause or aggravation. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Therefore, the preponderance of evidence is against the Veteran’s two service connection claim. As such, there are no doubts to be resolved. See 38 U.S.C. § 5107(b); Gilbert, supra. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.