Citation Nr: 21027825 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-34 344 DATE: May 6, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include alcohol-induced major neurocognitive disorder, with severe use disorder and alcohol use disorder in remission, secondary to, or as a residual of, service-connected traumatic brain injury (TBI) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's alcohol induced major neurocognitive disorder, with severe use disorder and alcohol use disorder in remission, is proximately due to or aggravated by his service-connected TBI; service connection is not otherwise available for a disability that is the result of the abuse of alcohol. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder to include alcohol induced neurocognitive impairment, with severe use disorder and alcohol use disorder in remission, due to service or a service-connected disability are not 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 served on active duty from December 1970 to December 1974. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The record shows that within one year of the June 2013 rating decision, additional records from the Social Security Administration were associated with the claims file. In accordance with 38 C.F.R. § 3.156(b), the RO reconsidered and denied the issues in a September 2014 rating decision. The Veteran then submitted a timely notice of disagreement in November 2014. This matter was previously remanded for additional development in a November 2018 Board decision. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Entitlement to service connection for an alcohol-induced major neurocognitive disorder, with severe use disorder and alcohol use disorder in remission The Board observes that 38 U.S.C. §105 and §1110 preclude compensation for primary alcohol and drug abuse disabilities and secondary disabilities that result from primary alcohol or drug abuse. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). However, service connection is warranted for an alcohol abuse disability acquired as secondary to, or as a symptom of, a Veteran's service-connected disability. Allen, 237 F.3d at 1381. Compensation should only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by the veteran's primary service-connected disability." Id. A disability that is proximately due to, or results from, another disease or injury for which service connection has been granted, will be considered part of the original disorder. 38 C.F.R. § 3.310(a). Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). To establish secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 511 (1998). The Veteran contends that his neurocognitive impairment is the result of a motor vehicle accident that occurred during service in 1973. Alternatively, he contends that his neurocognitive impairment is secondary to, or a residual of, his service-connected traumatic brain injury (TBI). See April 2011 Compensation Claim and November 2014 Notice of Disagreement. Initially, the Board notes that direct service connection for a disability that results from the abuse of alcohol or drugs is not available; therefore, as the Board will explain below, because the Veteran's psychiatric diagnosis is alcohol induced, no adjudication of the Veteran's major neurocognitive disorder as directly related to service, to include the 1973 motor vehicle accident is warranted. Therefore, the next question becomes whether the Veteran's neurocognitive impairment is secondary to, or a symptom of, his service connected TBI. However, again, as will be discussed in detail below, the Veteran's DSM-5 diagnosis reflects that his neurocognitive impairment is alcohol induced. As such, the preponderance of the evidence is against finding that the Veteran's neurocognitive impairment is proximately due to or aggravated by, or a symptom of, his service connected TBI. The Board acknowledges the Veteran's belief that his neurocognitive impairment is a residual of his service connected TBI. However, significantly, the Board notes that in establishing a current psychiatric disability, a mental disorder diagnosis conforming to the DSM-5 criteria must be shown. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). Here, the Veteran's DSM-5 diagnoses are alcohol induced major neurocognitive disorder with severe use disorder, and alcohol use disorder, severe, in remission. The Veteran is not currently in receipt of a diagnosis of an acquired psychiatric disorder in accordance with the DSM-5 that is not induced by alcohol or drugs, to include any disorder involving cognitive impairment. See May 2013 and October 2019 VA mental disorder examinations. These VA examiners found that his neurocognitive impairment was the result of alcohol abuse and not caused or aggravated by, or a residual of, his service connected TBI. Specifically, the October 2019 VA examiner explained that the Veteran's DSM-5 diagnoses had remained the same as the earlier diagnoses of substance-induced persisting dementia and alcohol dependence in partial remission provided during a May 2013 VA examination. In rendering her diagnoses, the 2019 VA examiner pointed to the Veteran's long documented history of alcohol abuse and evidence of alcohol induced dementia noted in the VA treatment records. The examiner referenced August 2007 entries noting an Axis I diagnosis of major depressive dependence and alcohol dependence and noted that the Veteran was in an addiction treatment program. At this August 2007 inpatient treatment consult, the Veteran reported that he drank eighteen beers per night for the past five or six months and his wife reported that he drank thirty-six beers per night. He noted that his most recent consumption was last night when he drank twenty-four beers, but also noted that prior to six months ago, he drank an average of six beers per week. He noted that he had not gone a day without alcohol for the past five or six months. See August 2007 mental health inpatient treatment plan note. In a February 2010 entry, the Veteran noted that he drank at least three times a week and had about eight beers. A June 2010 entry noted that the Veteran reported to the memory clinic because of progressive forgetfulness. The entry reflects that the Veteran had a history of polysubstance abuse for years and chronic alcohol use, noting that he was hospitalized in 2007 with alcohol withdrawal. The Veteran reported that his loss of ability to do calculations, spelling and short terms memory was worse over the last year. The impression provided was probable fronto-temporal dementia with previous history of polysubstance abuse, alcohol abuse and heroin use in the past. See June 2010 Geriatric Medicine Consult. Finally, a July 2012 entry noted dementia likely secondary to ETOH use. Further, the October 2019 VA psychiatric examiner opined that the Veteran's mental health symptoms, to include his cognitive impairment, were due to his alcohol induced major neurocognitive disorder and not residuals of his TBI. In forming her opinion, she considered the information obtained at the Veteran's October 2019 VA TBI examination, where the examiner opined that the Veteran's TBI (which occurred in-service in 1973 as a result of a MVA) had more likely than not resolved without direct residuals; explaining that the in-service TBI was remote and lacked evidence of a severe head injury. The VA TBI examiner also explained that current neurological exams and brain imaging were negative for confirmed evidence of TBI. Significantly, after examining the Veteran, the VA TBI examiner found that the Veteran did not have any subjective symptoms or any mental, physical, or neurological condition or residuals attributable to a TBI. See October 2019 VA TBI examination. In sum, the VA TBI examiner diagnosed an in-service TBI based on the Veteran's statement that he experienced an alteration in his mental state at the time of the 1973 in-service MVA. However, the TBI examiner also determined that despite experiencing a TBI during service, the Veteran currently experienced no residuals from the remote in-service TBI, including no evidence of a mental or neurological disorder. As noted above, the May 2013 VA examiner also diagnosed the Veteran with substance induced persisting dementia and alcohol dependence in partial remission, opining that the Veteran's cognitive impairment was at least as likely as not due to alcohol dependence based on the Veteran's report of gradual symptom onset and the history noted in the medical record of alcohol dependence without cerebrovascular accident (CVA). The examiner found that his symptoms included depressed mood, sleep disturbance, memory impairment and disturbance in executive functioning (judgement, abstract reasoning, and organizational skills). During this examination, the Veteran's wife reported that she noticed a dramatic change in his behavior and being forgetful in 2009 and stated that he was first diagnosed with dementia in 2010. The Board affords significant probative weight to the diagnoses rendered by the May 2013 and October 2019 VA examiners. Both examiners thoroughly reviewed the claims file, including the VA treatment records which document a long history of alcohol abuse and cognitive impairment related to this abuse. The examiners interviewed the Veteran and considered the onset and course of his neurocognitive impairment, ultimately concluding that it was alcohol induced. (Continued on the next page) The Board acknowledges that VA treatment records include a major depressive disorder on the Veteran's list of problems; however, the most probative evidence of record reflects that the Veteran's only mental health disorders diagnosed using the DSM-5 diagnostic criteria are alcohol induced and alcohol related. In fact, the Veteran's depressive symptoms have been attributed to his alcohol induced major neurocognitive disorder. See May 2013 VA examination. Furthermore, even assuming arguendo, that the Veteran was diagnosed with an acquired psychiatric disorder that was not alcohol induced, the October 2019 VA TBI examiner specifically found that the Veteran did not experience any mental disorder residuals (including emotional, behavioral or cognitive) that were attributable to his TBI; therefore, service connection for an acquired psychiatric disorder as a residual of a TBI would not be warranted. In summary, in addressing the Veteran's contention, the salient point to make is that the preponderance of the evidence is against finding that his major neurocognitive disorder is proximately due to or aggravated by, or a symptom of, his service-connected TBI. Instead, medical providers have found that his TBI has no current residuals and opined that his neurocognitive impairment is alcohol induced. Therefore, as the preponderance of the evidence is against the claim, service connection for an acquired psychiatric disorder to include an alcohol induced major neurocognitive disorder with severe use disorder, and alcohol use disorder in remission, is not warranted. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alison M. Mecone, 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.