Citation Nr: 23009167 Decision Date: 02/13/23 Archive Date: 02/13/23 DOCKET NO. 20-26 507 DATE: February 13, 2023 ORDER Entitlement to service connection for drug and alcohol abuse disorder(s), secondary to the service-connected adjustment disorder disability, is granted. Entitlement to a temporary total disability rating for a period in rehabilitation treatment for drug and alcohol abuse disorders is granted. FINDINGS OF FACT 1. The weight of the pervasive evidence supports a finding that the Veteran's drug and alcohol abuse disorders are etiologically related to the service-connected adjustment disorder disability. 2. The weight of the pervasive evidence supports a finding that the Veteran's in-patient rehabilitation treatment was necessary for a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for drug and alcohol abuse disorders, secondary to the service-connected adjustment disorder disability, have been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2021). 2. The criteria for a temporary total disability rating, for inpatient treatment of the service-connected drug and alcohol disorders, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 2005 to February 2010. In June 2020, the Veteran submitted VA Form 9. Therein, the Veteran requested a videoconference hearing at a local VA office. In May 2022, correspondence from the Veteran's attorney / representative was associated with the claims file. Therein, Counsel relayed the Veterans' request for a Board hearing had been withdrawn. Counsel indicated the Veteran desired for the Board to address the claim(s) based on the evidence currently in the claims file. 1. Entitlement to service connection for drug and alcohol abuse disorder(s), secondary to the service-connected adjustment disorder disability, is granted. In January 2018, the Veteran submitted a VA Form 21-526b. Thereby, the Veteran initiated his claim for service connection for a drug and alcohol abuse disorder disability. Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The VA is responsible for determining whether the weight of the pervasive evidence supports the claim or is in relative equipoise (with the Veteran prevailing in either event) or whether the weight of the pervasive evidence is against the claim (in which case the claim is denied). In July 2013, the Veteran underwent a VA examination that addressed the severity of any current acquired psychiatric disorders. The examiner relayed that the Veteran did not currently have a PTSD diagnosis. However, the examiner noted diagnoses for alcohol dependence and Adjustment Disorder with anxiety. The examiner reported that the Veteran's depressive symptoms, as well as lack of motivation, were due to his chronic alcohol use. In May 2018, the AOJ granted the Veteran's claim for a drug and alcohol abuse disorder, for treatment purposes, under 38 U.S.C. Chapter §17. The Board notes that the AOJ did not grant service connection for the Veteran's drug and alcohol abuse disorder. The AOJ noted that Veterans who develop substance abuse within two years of military discharge are entitled to health treatment, but monetary benefits are not available under 38 U.S.C. Chapter §17 for drug and alcohol abuse disorders. In April 2019, the Veteran submitted a notice of disagreement (NOD). Therein, the Veteran contested the AOJ's denial of service connection for drug and alcohol abuse. In January 2022, a disability befits questionnaire was associated with the claims file. The examiner noted that the Veteran demonstrated symptoms sufficient to warrant diagnoses for Adjustment Disorder and PTSD. The examiner opined that the Veteran had a long history alcohol-related problems that were secondary to the service-connected anxiety. In January 2023, the Veteran underwent a VA examination that addressed the nature and etiology of posttraumatic stress disorder (PTSD) disabilities. The examiner noted that the Veteran satisfied the DSM-5 criteria for a PTSD diagnosis. Additionally, the examiner noted diagnoses for alcohol, opiate use, and stimulant use disorders. The Veteran reported that he utilized alcohol and drugs to manage his emotional distress. The examiner remarked that, "(t)he overlap and interplay of the symptoms of PTSD, AUD / OUD / SUD is such that it is not possible to differentiate which impairment is caused by each mental disorder." As an initial matter, the Board notes that the July 2013 and January 2023 examiners noted current diagnoses for drug and alcohol abuse disorder(s). The Board also notes that the Veteran has maintained service connected for an adjustment disorder disability since February 2012. Finally, the January 2022 examiner reported that the Veteran's diagnosed substance abuse disorders were secondary to his adjustment disorder disability. Consequently, all three requisite elements for secondary service connection have been substantiated. See Wallin, 11 Vet. App. 512; Reiber, 7 Vet. App. at 516-17. Ultimately, the weight of the pervasive evidence favors secondary service connection for drug and alcohol abuse disabilities. Accordingly, this service-connection claim must be granted. 2. Entitlement to a temporary total disability rating for a period in rehabilitation treatment for drug and alcohol abuse disorders is granted. In January 2018, the Veteran submitted a VA Form 21-526b. Thereby, the Veteran initiated his entitlement claim for a 100 percent temporary total disability rating for his in-patient rehabilitation treatment for drug and alcohol abuse disorders. In May 2018, the Veteran submitted a VA Form 21-4138. Therein, the Veteran again requested a temporary 100 percent rating for a period of in-patient treatment for drug and alcohol abuse. A temporary total disability rating will be assigned under 38 C.F.R. § 4.29 when it is established that a service-connected disability required hospital treatment in a VA or an approved hospital for a period exceeding 21 days or hospital observation at VA expense for a service-connected disability for a period exceeding 21 days. 38 C.F.R. § 4.29. Alternatively, a temporary total disability rating will be assigned without regard to other provisions of the Rating Schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted under 38 C.F.R. § 4.30(a) for treatment of a service-connected disability, effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. Under 38 C.F.R. § 4.30(a), a temporary total rating will be assigned if the hospital or outpatient treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. In April 2018, treatment notations, which were generated at the Maryland Health Care System (HCS). After review of the HCS records, the Board observes the Veteran was hospitalized for the Substance Abuse Resident Program from December 2017 to April 2018. Consequently, this period of inpatient treatment satisfies the 21-day criteria required by 38 C.F.R. § 4.29. In May 2018, the AOJ determined that a 100 percent, temporary rating was not warranted because the Veteran was admitted to a treatment program for drug and alcohol abuse, which was not service connected at that time. As a result of the decision above, the Veteran now maintains service connection for drug and alcohol use disorders, secondary to the service connected adjustment disorder disability. The Board observes that the 21-day inpatient hospitalization requirement is satisfied in this case. Because the Veteran is now service-connected for drug and alcohol abuse disorders, secondary to an adjustment disorder disability, the evidence now supports the award of a temporary total rating. See 38 C.F.R. § 4.29. Ultimately, the Board concludes that the weight of the pervasive evidence stands in favor of the Veteran's claim for a temporary total rating for his period of hospitalization for the now-service-connected drug and alcohol abuse disorders. Since the weight of the pervasive favors this entitlement claim, it must be granted. Paul Casey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.