Citation Nr: 21041909 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-36 797 DATE: July 10, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, drug abuse, and alcohol abuse is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has had current diagnoses of psychiatric disabilities, including PTSD or depression, under the DSM-V criteria at any time during the entire period on appeal. 2. The Veteran has not had any service-connected disabilities at any time during the entire period on appeal. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, depression, drug abuse, and alcohol abuse have not been met. 38 U.S.C. §§ 105, 1110, 5107 (2012); 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303, 3.304, 3.310, 4.125(a) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1971 to August 1972. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office. In March 2020, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In May 2020, the Board remanded the matter for further development. Now the matter is returned to the Board. The Veteran is seeking service connection for PTSD and depression as well as drug abuse and alcohol abuse. He contends that his psychiatric conditions are a result of an incident in service where he was attacked by a group of men while his girlfriend at the time was taken away and raped by others. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110 (2012). 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). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2020). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2020). See also Cohen v. Brown, 10 Vet. App. 128 (1997). If a veteran's PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor events. 38 C.F.R. § 3.304(f)(5) (2019). Within the legal framework for evaluating claims of service connection for PTSD, the sufficiency of a stressor is a medical determination, while the occurrence of the stressor is a legal determination. Sizemore v. Principi, 18 Vet. App. 264 (2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Notably, when a veteran's claim was certified for appeal before the Board after August 4, 2014, any diagnoses for psychiatric disabilities rendered for purposes of obtaining VA benefits must use the DSM-V criteria. 38 C.F.R. § 4.125(a) (2020), 80 Fed. Reg. 14308 (Mar. 19, 2015) (final). Here, the Veteran's claim was certified for appeal before the Board in July 2017. Thus, the Veteran's current diagnoses of psychiatric disabilities under the DSM-V criteria are required for service connection. However, the evidence of record does not contain any current diagnoses of psychiatric disabilities under the DSM-V criteria. For example, on October 2016 VA examination for PTSD, the examiner reported that the Veteran does not have a diagnosis of PTSD or any other mental disorder that conforms to the DSM-V criteria. The examiner reported malingering and alcohol/substance use disorders as the Veteran's current diagnoses. The examiner noted that the Veteran was an unreliable historian because he was contradicting his own previous statements within the same examination or information documented in his records which he had provided to his other medical providers. See also April 3, 2015 Psychiatry Outpatient Note (the Veteran "requested to be diagnosed with PTSD" and individual therapy as he is filing a claim; he did not endorse nightmares, flashbacks, increased startled responses, or avoidance). Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran has had current diagnoses of psychiatric disabilities, including PTSD or depression, under the DSM-V criteria at any time during the entire period on appeal. The Board notes that the Veteran is also seeking service connections for drug and alcohol abuse disorders. See May 2016 Application for Disability Compensation and Related Compensation Benefits. As stated above, the October 2016 VA examiner noted the Veteran's current diagnoses of alcohol/substance abuse disorders and the evidence of record reveals a history of the Veteran's drug addiction prior, during, and after his active duty service. See e.g., November 28, 2000 Mental Health Evaluation Note (the Veteran's use of street drugs and alcohol from 16 years of age and deterioration of his drug habits upon entrance to the Navy was reported), April 21, 1972 Service Treatment Record (the Veteran admitted using drugs for the past two to three years; heroin use and bad trips from LSD and a history of several problems with civilian and military authorities were noted); July 16, 1974 Navy Discharge Review Board Report (a history of disciplinary actions related to selling and using drugs in service as well as fraudulent enlistment and unauthorized absences were noted); Medical Records from October 19, 2000, June 3, 2014, February 23, 2015, and December 8, 2014 (the Veteran's use and relapses related to heroin, methadone, cocaine, and opiates were noted). Notably, Section 8052 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 91, prohibits payment of compensation for a disability that is a result of a Veteran's alcohol or drug abuse. Section 8052 additionally amended 38 U.S.C. § 105(a) to provide that an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's willful misconduct, including abuse of alcohol or drugs. 38 U.S.C. § 105 (2020); 38 C.F.R. §§ 3.1(m), 3.301(d) (2020). However, the United States Court of Appeals for the Federal Circuit has held that there can be service connection for compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Veterans may 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." Id., at 1381. Here, the Board finds that the Veteran has not had any service-connected disabilities at any time during the entire period on appeal. Therefore, the Veteran's service connection claims for drug and alcohol abuse disorders do not present a basis for which relief may be granted, and have no legal merit. As the disposition of the claim for is based on law and not the facts of this case, it must be denied based on lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As the preponderance of the evidence is against the Veteran's service connection claim for an acquired psychiatric disorder, the benefit-of-the-doubt doctrine does not apply. Consequently, the Veteran's entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, drug abuse, and alcohol abuse is not warranted. 38 U.S.C. §§ 105, 1110, 5107 (2012); 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303, 3.304, 3.310, 4.125(a) (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.