Citation Nr: 21011318 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-33 535 DATE: March 1, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, bipolar disorder, and drug and alcohol abuse disorder, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder, regardless of diagnosis, which began during his service, or within a year of his discharge (if involving a psychosis), or is otherwise related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for an acquired psychiatric disorder, including for PTSD, depressive disorder, bipolar disorder, and drug and alcohol abuse disorder. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1976 to March 1981. This appeal to the Board of Veterans’ Appeals (Board) is from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded this claim back to the Agency of Original Jurisdiction (AOJ) for further development and consideration. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder, bipolar disorder, and drug and alcohol abuse disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a nexus between the disease or injury in service and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran contends that his acquired psychiatric disorder is the result of his military duties of controlling entry and exit to all priority access involving aggressive, physical, hand-to-hand combative maneuvers, which occasionally resulted in bodily injuries. He also asserts that he suffers from PTSD and bipolar disorder from his experience of boxing in service. In May 2019, he also submitted a statement in support of claim for PTSD, in which he described a traumatic experience when he engaged in a reconnaissance mission while serving in Scotland. He stated that they landed on top of an ice-capped mountain after an aircraft explosion and searched for bodies and found body parts everywhere.   Service treatment records (STRs) show that, in August 1980, the Veteran underwent a psychiatric evaluation because of then recent deterioration in his job performance, low morale, and a then recent alcohol incident. He related those issues to harassment by his supervisors. He viewed one alcohol incident as an isolated situation. He was found to have no psychiatric or personality disorder. He opted not to have a separation physical in March 1981 when exiting service. VA mental health outpatient records reflect that the Veteran denied any psychiatric diagnoses or treatment history. In March 2006, he also denied any history of significant anxiety or depression. A March 2013 VA mental health outpatient note shows diagnoses of alcohol and drug dependence based on DSM-IV criteria. The Veteran was provided a VA mental disorder examination in October 2013. The diagnoses were depressive disorder, not otherwise specified (NOS), and alcohol and drug abuse. It was noted his depressive symptoms included sadness, sleep disturbance, and decreased levels of motivation. He denied past mental health treatment history; however, he had been receiving outpatient substance abuse treatment since his service. The examiner opined that the Veteran’s then current depression did not appear to have an obvious nexus to his military service years. In terms of his substance abuse diagnoses, he indicated that he had started using alcohol and cocaine daily in 1991 after being fired from the Postal Service. The examiner surmised that, as the abuse did not begin until 10 years after the Veteran’s discharge from the military, it is less likely than not related to his service and more likely, instead, to being fired from the Postal Service. More recently, the Veteran was provided a VA PTSD examination on remand in September 2020. The examiner noted a diagnosis of moderate alcohol use disorder and that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD according to the DSM-5. The Veteran denied having mental health issues during his military service. He stated he began using alcohol and drugs in the military, started drinking heavily in 1985, completed substance abuse treatment from 1996 to 1997, and participated in a VA inpatient substance abuse program in 2013.   Regarding in-service stressors, the Veteran reported landing on top of an ice-capped mountain searching for body parts in service. The examiner stated this stressor met Criterion A, i.e., was adequate to support the diagnosis of PTSD and was related to the Veteran’s fear of hostile military or terrorist activity. However, the remaining diagnostic Criteria B, D, E, and H were not met. There also was no history of diagnosis of PTSD. When asked about symptoms, the Veteran stated that “I am okay.” The examiner explained the Veteran’s symptoms failed to rise to a level of a mental health disorder – with the exception of alcohol use disorder and stimulant use disorder, cocaine type, and that his past records support an extensive history of drug and alcohol abuse without significant mental health comorbidity. The examiner, therefore, opined that any depressive symptoms the Veteran experienced in the past likely resulted from consequences of poor lifestyle choices owing to his life-long drug addiction. It was further noted that he did not currently endorse any depressive symptoms and did not meet diagnostic criteria for PTSD. The examiner concluded that no diagnosis was warranted at the time of that evaluation. Based on this collective body of evidence dating back several years, the Board determines that service connection is not warranted for PTSD or for any other mental health illness. Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (meaning in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM)); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and a claimed in-service stressor. 38 C.F.R. § 3.304(f). As discussed, however, the Veteran does not have a current diagnosis of PTSD according to the requirements of the DSM-5. Concerning this, the October 2013 VA examiner found that the Veteran’s symptoms were better described by depressive disorder and alcohol and drug dependence diagnoses. Also, notably, the more recent September 2020 VA examiner agreed when addressing the Veteran’s description of his in-service stressors and his symptoms. Although the reported in-service stressor was found to be adequate to support a diagnosis of PTSD, the examiner ultimately found that the Veteran simply did not have sufficient symptoms to meet all the diagnostic criteria for PTSD. Thus, the evidence weighs toward finding that he does not have currently diagnosed PTSD. Moreover, the Veteran’s STRs indicate that he did not have any psychiatric diagnosis during his active duty service, and his post-service VA mental health treatment records do not reflect treatment for PTSD. Accordingly, his claim for PTSD must be denied due to the lack of the required current PTSD diagnosis in accordance with the DSM criteria. The Board also determines that service connection is not warranted for the Veteran’s alcohol or drug use disorder, depressive disorder, or bipolar disorder. The September 2020 VA examiner determined the only acquired psychiatric disorder the Veteran currently has is alcohol use disorder. As a general matter, VA law and regulations preclude an award of direct service connection for disability that originated due to substance abuse (alcohol and/or drug abuse), as this is deemed to constitute willful misconduct on the part of the claimant. 38 U.S.C. § 105(a); 38 C.F.R. § 3.301(b), (d); VAOPGPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, has held that there can be compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a Veteran's service-connected disability. See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001) (indicating that Veterans could only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder."). But there is no such probative indication in this instance. The VA examiner provided a well-supported opinion describing the Veteran’s mental health history and that his only currently diagnosed acquired psychiatric disorder is alcohol use disorder. Thus, it cannot be said the alcohol use disorder (or the prior drug abuse) is secondary to a mental disorder, such as being a coping mechanism. The Board finds the VA examination and VA opinion to be probative, especially since uncontroverted. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). The Board recognizes that, during the pendency of this appeal, the October 2013 VA examination also resulted in a diagnosis of depressive disorder, NOS. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a current disability exists if the diagnosed disability is present at the time of the claim or during the pendency of the claim, even if the disability resolves prior to VA’s adjudication of the claim). However, this disorder was not shown in service. Indeed, while the Veteran was shown to have deterioration in his performance while in service, a psychiatric evaluation in August 1980 revealed no underlying psychiatric disorder. Moreover, the Veteran has reported that he has not had any history of significant psychiatric symptoms – except for his extensive abuse of alcohol and drugs since his service. Notably, VA mental health outpatient records reflect that he denied any psychiatric diagnoses or treatment history. In March 2006, he also denied any history of significant anxiety or depression. Notwithstanding a lack of continuity of symptoms since his service as contemplated by 38 C.F.R. § 3.303(b), service connection also may be based on medical evidence of a nexus to service, even if the initial diagnosis was not until however long after service. See 38 C.F.R. § 3.303(d). Unfortunately, though, here, the evidence does not show such a nexus. Specifically, the Board relies on the opinion provided by a VA examiner in September 2020, who stated that any depressive symptoms the Veteran experienced in the past likely resulted from consequences of poor lifestyle choices owing to his life-long drug addiction. An earlier examiner also cited as relevant the Veteran being fired from the Postal Service, so another unfortunate situation in his life unrelated to his service.   For the reasons and bases discussed, the preponderance of the evidence is against this claim, so the benefit-of-the-doubt rule is inapplicable, and this claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.