Citation Nr: 21024865 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-31 252 DATE: April 26, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include unspecified mood disorder, polysubstance dependence, and unspecified personality disorder (claimed as depression), is denied. Entitlement to service connection for human immunodeficiency virus (HIV), to include as secondary to a mood disorder, is denied. FINDINGS OF FACT 1. The evidence reflects that the Veteran's acquired psychiatric disability clearly and unmistakably preexisted his active duty service and was not permanently aggravated by an in-service injury, event, or illness. 2. The preponderance of the evidence is against a finding that the Veteran’s HIV had its onset during active service, was otherwise caused by active service, or was caused by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric condition are not met. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. The criteria for service connection for HIV, to include as secondary to a mood disorder, have not been met. 38 U.S.C. §§ 1131 , 5107; 38 C.F.R. §§ 3.1 (m)-(n), 3.102, 3.301, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1979 to December 1980. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2017 hearing, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claim file. In January 2018 and October 2019, the Board remanded the matter for further development. Pursuant to the October 2019 Remand, the Agency of Original Jurisdiction (AOJ) confirmed the Veteran’s current mailing address and requested authorization to obtain relevant private medical treatment records in a November 2019 letter. He did not respond. A November 2019 inquiry to Social Security Administration for medical records, resulted in a negative response, which also indicated that further attempts to obtain the records would be futile. See SSA National Records Center correspondence, received March 16, 2020. In January 2020, the Veteran underwent VA examinations for mental disorders and HIV, and the AOJ issued a March 2020 Supplemental Statement of the Case. Accordingly, the Board finds there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA compensation benefits for claims filed after October 31, 1990. 38 U.S.C. §§ 105, 1131; 38 C.F.R. § 3.1 (m)-(n), 3.301. Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Also, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). 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). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The provisions of 38 C.F.R. § 3.306 (b) provide that aggravation may not be conceded unless the pre-existing condition increased in severity during service. An important distinction between section 1111's aggravation prong of the presumption of soundness and section 1153 presumption of aggravation is the burden of proof. Under section 1111, the burden is on the Government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Under section 1153, however, the Appellant bears the burden of showing that his preexisting condition worsened in service. Once the veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2014). This requires the government to show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); 38 C.F.R. § 3.306 (b). Determinations regarding service connection are based on a review of all of the evidence in the record, including all pertinent medical and lay evidence. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). A layperson is competent to report on the onset and continuity of his or her 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). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2007). When evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole. See Evans v. West, 12 Vet. App. 22, 26 (1998). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Facts and Analysis The Veteran asserts that his mood disability and HIV are due to active duty. He testified that he was beaten up and endured continuing harassment from other soldiers after he was seen leaving a gay bar in Germany, which led to anxiety and intravenous (IV) drug abuse while on active duty. Service treatment records reflect that in October 1979, the Veteran enlisted in the Army. The Report of Medical Examination notes the Veteran tends to worry, gets depressed, has difficulty falling asleep, and had psych once per week for 2 months in 1974. In addition, the examination report had a stamp that indicated the Veteran denied significant medical history of alcohol, illegal drug use, and homosexual activity. There is no diagnosed psychiatric disability or waiver noted. During the Veteran’s brief period of service, he did not receive any treatment or medication for any psychiatric disability or HIV-related illness. At the time of his December 1980 separation from service, the Veteran identified he had frequent trouble sleeping on the Report of Medical History, and the examiner wrote there were no presenting complaints. During the Veteran's August 2017 hearing, the Veteran testified his psychiatric disability and HIV were a result of harassment and violence endured while on active duty in Germany. He explained that there were rumors and harassment about his sexuality, and he was beat up by other soldiers but did not report the discrimination because he was bi-sexual and feared a court martial. The Veteran testified that one of his sergeant’s introduced him to heroin to cope; this was the first time he used the drug. The Veteran asserted he was anxious and would lose focus and his performance started to decline. Moreover, the Veteran testified that the commander questioned his performance and confronted him with the rumors about his sexuality, offering the option to discharge honorably. The Veteran accepted separation. The Veteran further testified he was diagnosed with HIV in 1989 and believed it was caused by shooting IV drugs. Regarding psychiatric treatment, he only recalled a couple of hospitalizations, including as a youth. The Veteran’s DD 214 reflects an honorable discharge for failure to maintain acceptable standards for retention under the early discharge program. There are no notations referencing alcohol or drug abuse, psychiatric disability, or disciplinary action. January 2002 Denver VA medical center (MC) records reflect a mental health intake and assessment was performed for the Veteran. He was diagnosed with polysubstance abuse and HIV and was noted as depressed and on probation for recent drug charge conviction. The Veteran’s education history indicated truancy, difficulty sitting still, and alcohol/ drug abuse. He was noted to be an inconsistent historian regarding his past medical treatment but identified a psychiatric problem at age 16 due to runaway tendencies for which he took Thorazine. He reported taking lithium for four months, approximately two years ago, and denied ever taking antidepressants. He first used alcohol at age 12, cocaine at 20, and IV drugs at 20, as well. He reported nearly steady use of IV cocaine from 1987 to 1999. He also abused alcohol daily, with average of 20 -30 drinks per week until October 2001. The Veteran was noted to attend three inpatient substance abuse programs and three to four outpatient substance abuse treatment programs. Throughout the appeal period Denver VAMC treatment records reflect the Veteran had a diagnosis of HIV, Hepatitis C, and polysubstance abuse. The Veteran was initially diagnosed with bipolar disorder in 2006. However, by September 2006, the psychiatric diagnosis was questionable, as it was unclear whether his symptoms of depression, irritability, grandiosity, and distractibility were secondary to drug use and abuse or a primary bipolar disability. See e.g., Denver VAMC treatment record, dated September 21, 2006. In July 2014 the Veteran attended a Denver VAMC Initial Mental Health Assessment, where his symptoms were noted as consistent with attention deficit hyperactivity disorder (ADHD), to include jumbled thoughts, an inability to complete tasks, and a history of hyperactivity, with reported Ritalin and Thorazine treatment. The Veteran denied a history of symptoms consistent with a mood disorder, citing no decreased need for sleep, grandiosity, increased goal directed activity, extended periods of elated mood, or rapid speech. He reported situational depressional, lasting only a day. Passive suicidal ideation was noted as two to three times a year, but he denied he would commit suicide. Further, there were no symptoms of psychosis, compulsions, mania, or posttraumatic stress disorder. The Veteran was noted to suffer from homelessness. The examiner opined that the Veteran’s many years of substance abuse clouded both the diagnostic picture and the Veteran’s thoughts, but overall, his presentation and history was not consistent with a mood disorder but was more suspicious of ADHD with contributing antisocial personality disorder. See Denver VAMC treatment record, dated July 17, 2014. By December 2014, the Veteran no longer appeared to meet the criteria for antisocial personality disorder. See e.g., Denver VAMC treatment record, dated December 4, 2014. In October 2012, the Veteran underwent VA examination for a psychiatric disability and was diagnosed with polysubstance dependence (reported to be in remission), mood disorder, and personality disorder. The examiner, R.P., M.D., Psychiatrist, opined that the Veteran's mood disorder as likely as not predated military service because the Veteran was treated inpatient as a teenager for behavior problems and mood disturbance. Further, the examiner determined the disability was not aggravated beyond its natural progression by an in-service event, injury, or illness. As a rationale, she indicated that the Veteran does not report treatment for mental health issues during military service, although he believed he may have been seen for alcohol and/or substance abuse once or twice in Germany. Further, the Veteran did not describe significant depressive symptoms during military service but did report behavioral issues and substance use. The Veteran’s post-military legal problems, relationships, and physical issues were all stressors identified as likely as not the basis for his post-military depression. Overall, the October 2012 examiner found the Veteran had an occupational and social impairment with intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Of the entire impairment, 90 percent was due to polysubstance abuse and the remaining 10 percent was associated to his mood disorder and characterological issues. The examiner found it as likely as not that the polysubstance abuse was associated with military experiences, given the Veteran’s report of separation from active duty due to alcohol use and performance issues. The Veteran’s personality disorder was associated with childhood developmental issues and maladaptive behaviors and coping styles. The Veteran was afforded an additional VA psychiatric examination in February 2020. The Veteran was diagnosed with unspecified mood disorder, cannabis use disorder, and unspecified personality disorder. The examiner opined that the Veteran’s psychiatric disabilities were less likely than not caused by or exacerbated by an injury or event during service. As rationale, the examiner explained that prior to service the Veteran demonstrated multiple areas of poor functioning (to include work, relational, and academic) and has a chronically low level of adaptive coping skills, demonstrated by his passive-avoidant and dependent personality features. The Veteran reported at least three hospitalizations as a teen for anxiety, depression, and non-compliant behavior. He was in a juvenile facility for runaway behavior at age 12 to 13, placed at a Boys Ranch from 13 to 15, and had inpatient treatment within these periods as well. Further, the Veteran obtained a GED at 18 and enlisted in the Army. The Veteran reported, after service, he never had a pattern of stable work and had poor vocational adjustment. At the time of examination, his social security benefits had ceased, and he panhandled, sold oils, and performed odd jobs. During the February 2020 VA examination, the Veteran did not report mental health treatment or diagnosis on active duty. Post-military service, the Veteran reported intermittent attempts at treatment, but none occurred since the 1990’s. He denied taking any psychotropic medications. Symptoms were depression, anxiety, impaired judgement, and disturbances of motivation and mood. The Veteran’s occupational and social impairment was with deficiencies in most areas, and all impairments were determined as likely due to his chronically poor adjustment in multiple areas and chronic personality disorder secondary to personality problems. Overall, the examiner opined that the Veteran’s mental health problems, personality deficits and substance abuse problems were preexisting to military service, and did not appear to be aggravated beyond the natural progression of the disabilities during service as the Veteran continued to drink heavily and was using IV heroin and cocaine on a regular basis. Regarding substance use, at the February 2020 VA examination the Veteran reported marijuana and alcohol use on a regular basis as a teen. The Veteran indicated using heroin and cocaine (by injection) on a regular basis and drinking alcohol excessively while in Germany during military service. After active duty, the Veteran continued abusing both drugs and started dealing methamphetamines to pay for his addiction. He indicated multiple arrests since age 18 related to shoplifting, drug possession, trespassing, and domestic violence. He did not have any current legal problems and was not on probation at the time of examination. He stopped using all hard drugs in 2012 and no longer used alcohol, but he continued to smoke marijuana throughout the day. 1. Psychiatric Disability The Veteran is entitled to the presumption of soundness for acquired psychiatric disability, to include unspecified mood disorder, polysubstance dependence, and unspecified personality disorder (claimed as depression). The examining doctor during the Veteran's induction examination did not diagnose a psychiatric disorder. The next matter is whether there is clear and unmistakable evidence that the Veteran’s psychiatric disability preexisted his active duty service. The Board concludes that the record clearly and unmistakably shows that the Veteran's psychiatric disorder preexisted his brief period of service, of which he was discharged under the expeditious discharge program for failure to maintain acceptable standards for retention. The Veteran himself reported his lengthy psychiatric history prior to military service on his report of medical history at entrance, in the course of care at VA medical center (MC) appointments, and during his VA psychiatric examinations. Turning to whether there is clear and unmistakable evidence that the Veteran's preexisting psychiatric disability was not aggravated during service, the medical opinions have consistently concluded the Veteran's psychiatric condition was not aggravated during service beyond the natural progression of the disability. The evidence did not indicate complaints or treatment for a psychiatric disability on active duty, and during examination the Veteran did not report significant depressive symptoms during military service. The Veteran was noted to describe behavioral and substance abuse problems, which pre-dated service and continued regularly during his brief period of active duty and thereafter. The Board finds the examiners' combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data based on the Veteran's own reports of his personal psychiatric history and assigns it more probative value than the Veteran’s lay reports that anxiety caused him to use drugs. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Veteran has been diagnosed with unspecified personality disorder, VA regulations provide that congenital or developmental defects, personality disorders, and mental deficiency are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303 (c); see also Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003). VA regulations specifically prohibit service connection for congenital defects unless such defect was subjected to a superimposed disease or injury during service which created additional disability. See VAOPGCPREC 82-90. As discussed above, there is no evidence to warrant such a finding in this case. Further, multiple psychiatric symptoms were noted on the entrance examination, and at the time of discharge the Report of Medical History indicated only the sleep issue remained a concern for the Veteran. Consequently, the Board finds that the Veteran's 14 months of service did not aggravate the Veteran's lifelong psychiatric issues. Notably, the October 2012 examiner found that polysubstance abuse was as likely as not associated with the Veteran’s military experiences, given his report of being asked to leave the military due to alcohol use. Even assuming the Veteran’s alcohol use was related to harassment and abuse based on his sexuality, the Board finds that the evidence reflects he abused alcohol and drugs prior to service and the behavior continued during active duty. In addition, the examiners’ combined opinions reflect that the Veteran’s mood and substance abuse disabilities were secondary to personality problems, which were associated with childhood developmental issues, maladaptive behaviors, and coping styles. In light of the above, the Board concludes that the record establishes clearly and unmistakably that the Veteran's preexisting psychiatric disorder did not worsen during his service beyond the natural progression of the disability due to an in-service injury, event, or illness. Thus, the presumption of aggravation has been rebutted and entitlement to service connection for an acquired psychiatric disability, to include unspecified mood disorder, polysubstance dependence, and unspecified personality disorder (claimed as depression) must be denied. 2. HIV Regarding the Veteran’s HIV, he asserts it is a direct result of drug use in Germany during the service. See e.g., VA Form 21-526 EZ, received August 17, 2002. The evidentiary record documents the Veteran's history of drug and alcohol abuse prior to, during, and after military service. Although the Veteran testified he may have received substance abuse treatment in Germany, and was discharged in part due to alcohol abuse, there is no corroborating evidence of treatment in the evidentiary file. The Veteran was diagnosed with HIV in 1989. In May 2019, VA obtained examination and medical opinion for the Veteran’s HIV. After review of the medical records and an in-person examination, an opinion on secondary service connection was rendered. The examiner opined that it was less likely than not that the patient's HIV was caused or aggravated by his mental health disability. As rationale, the examiner noted the condition was first diagnosed post-military in 1989, when the Veteran had pneumonia and reported participation in unsafe sexual practices and drug abuse. Further, the examiner found there could not be service aggravation, as the Veteran’s HIV had not worsened since the initial post-service diagnosis in 1989. The Veteran was afforded another VA examination for HIV in February 2020, and the examiner provided a medical opinion regarding direct service connection. The examiner conducted an in-person examination, reviewed the medical records, and determined that the Veteran’s HIV was less likely than not incurred or caused by an in-service injury, event, or illness. The examiner found no in-service history of blood born pathogen contamination or surgery. A post military history of using multiple injected substances at the time of diagnosis in 1989 and continuing to inject drugs until 2012 was noted. The examiner also opined that it was more likely than not that needle sharing from the time of discharge until diagnosis caused the Veteran’s HIV. The Board acknowledges the Veteran's statements that he contracted HIV from IV drug use in Germany on active duty. Indeed, he is competent to report IV drug use. However, identifying the timing of HIV transmission involves a complex medical issue that the Veteran is not competent to address. He has no way of knowing, and has not provided evidence establishing he was actually infected with HIV through IV drug use nine years prior to the diagnosis, nor has he been shown to have the medical training or expertise to render a competent opinion as to whether he may have contracted HIV in the manner alleged, as this is a determination that is too complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Even assuming the Veteran did contract HIV from IV drug use in Germany, which was not diagnosed until nine years later, the Board finds that direct service connection is precluded as a matter of law as it resulted from the claimant's own abuse of drugs. See 38 U.S.C. §§ 105, 1131; 38 C.F.R. § 3.1 (m)-(n), 3.301. Considering secondary service connection, the Board finds that the evidence weighs against service connection for HIV on a secondary basis. The Veteran has asserted that his HIV was caused by his mental health condition with drug and alcohol use as an intermediary step. However, with the Board’s denial of service connection for an acquired psychiatric disability, to include unspecified mood disorder, polysubstance dependence, and unspecified personality disorder (claimed as depression), secondary service connection is not warranted as a matter of law. 38 C.F.R. § 3.310.   Accordingly, the Board finds the preponderance of the evidence is against finding that the Veteran’s HIV had its onset during active service or was otherwise caused by active service. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Gipson, 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.