Citation Nr: 0729264 Decision Date: 09/18/07 Archive Date: 10/01/07 DOCKET NO. 05-15 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include alcohol dependence. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Simone C. Krembs, Associate Counsel INTRODUCTION The veteran served on active duty from March 1977 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) from a March 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the veteran's claim for an acquired psychiatric disorder. FINDINGS OF FACT 1. The veteran does not have a current diagnosis of an acquired psychiatric disorder aside from alcohol dependence. 2. Alcohol dependence is the result of the veteran's own willful misconduct and is not the result of any service- connected disability. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met; service connection for alcohol dependence is barred as a matter of law. 38 U.S.C.A. §§ 105, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). See also Degmetich v. Brown, 104 F. 3d 1328 (1997); Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection for certain chronic diseases, including psychoses, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2006). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The veteran contends that he has an acquired psychiatric disorder related to his period of active service. Specifically, the veteran contends that he has depression, stress, and anxiety, in addition to fears of heights and darkness, as a result of his active service. Additionally, the veteran contends that his alcohol dependence began during his period of active service, and that he is therefore entitled to service connection for alcohol dependence. He does not report, however, a continuity of psychiatric symptoms since discharge. The veteran's service medical records are negative for a diagnosis or symptoms of depression, stress, or anxiety. Additionally, his service medical records do not demonstrate complaints of fear related to heights or darkness. His service medical records do show that in May 1979 he underwent a drug screen, which was determined to be negative for any substance other than caffeine. His service medical records do not show that he was diagnosed with or received treatment for alcoholism. The veteran underwent examination in May 1979, prior to his separation from service. However, the report of examination is not of record. There is no evidence of a chronicity of psychiatric disability since service, and indeed, as noted above, the veteran does not contend otherwise. Indeed, the earliest post-service clinical evidence related to a psychiatric disorder is dated in April 2003, when the veteran was admitted to a VA hospital after presenting to the emergency room with suicidal ideation. At the time of his admission, the veteran was found to be intoxicated. He reported a long history of alcohol abuse, as well as a history of use of cocaine and marijuana. He denied a history of psychiatric care, and stated that he had not previously sought help for substance abuse. He reported feeling as though he had nothing to live for, and expressed sadness regarding the recent death of his father. During the hospitalization, no mention was made of a fear of heights or darkness, and he was observed to tolerate detoxification well. At the time of his discharge from the hospital, the veteran stated that he was doing well. He denied suicidal or homicidal ideation, and contracted for safety. He had no acute complaints and there was no evidence of psychosis. The diagnoses were: 1) acute alcohol intoxication, resolved; 2) alcohol dependence with physiologic dependence; 3) alcohol-induced depressed mood with onset during intoxication, resolved; 4) cocaine abuse; 5) marijuana abuse; and 6) bereavement. Significantly, no psychiatric disorder aside from alcohol dependence was diagnosed. The veteran was not assigned to the mental health clinic for follow up after his release. In this case, no psychiatric disorder for which service connection is available has been diagnosed. While the veteran was found to have a "depressed mood" in April 2003, that depressed mood was determined to be alcohol-induced and to have resolved with detoxification. That is, the veteran's depressed mood was not felt to be chronic. Additionally, he was not diagnosed with anxiety at the time of his hospitalization. As the veteran was not diagnosed with either depression or anxiety at the time of his April 2003 hospitalization and there is otherwise no evidence demonstrating that he meets the criteria for a diagnosis of depression or anxiety, service connection for either of those psychiatric disorders must, necessarily, be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In recent statements in support of his claim, the veteran has asserted that he has depression, anxiety, and fears of heights and darkness that are related to his active service. However, as a layperson, the veteran is not competent to give a medical opinion on causation or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about current symptoms and what he experienced. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). As the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder (depression, anxiety, or fears of heights and darkness) the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, with respect to the veteran's contention that he should be service-connected for alcohol dependence that began during his period of active service, service connection may be granted for disability due to a disease or injury that is incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303. No compensation shall be paid, however, if the disability was the result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1131. Alcohol abuse is the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. Drug abuse is the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301 (2006). Alcohol abuse and drug abuse, unless they are a "secondary result" of an "organic disease or disability," are considered to be "willful misconduct." See 38 C.F.R. §§ 3.301(c)(2), 3.301(c)(3). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3). 38 U.S.C.A. § 105(a), as amended by section 8052(a) of the OBRA, prohibits a grant of "direct service connection" for drug or alcohol abuse on the basis of incurrence or aggravation in line of duty during service. Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351(1990); VAOPGCPREC 2-98 (Feb. 10, 1998). However, a veteran may be service connected for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his or her service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In order to qualify for service connection in this regard, the veteran must establish, by clear medical evidence, that his alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder, and that it is not due to willful wrongdoing. Allen, 237 F.3d at 1381. In this case, the veteran is not seeking service connection for alcoholism as secondary to or as a symptom of a service connected disability. Significantly, the veteran is not service-connected for any other disability related to his service. As there is no evidence which supports a finding that his alcoholism developed secondary to a service- connected disability, the Board finds that the veteran's alcoholism was willful misconduct. See 38 C.F.R. §§ 3.301(c)(2), 3.301(c)(3). The provisions discussed above clearly preclude the granting of benefits for the veteran's abuse of alcohol, regardless of whether such abuse originated in service. Where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought. See Sabonis v. Brown, 6 Vet. App. at 426, 430 (1994). As the veteran's claim for service connection for alcoholism was filed in August 2003, long after the effective date of OBRA, it lacks legal merit, and the claim must be denied. In sum, the facts in this case preclude the granting of benefits for abuse of alcohol, regardless of whether such abuse originated in service. Where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought. See Sabonis v. Brown, 6 Vet. App. at 426, 430 (1994). Similarly, the facts preclude the granting of benefits for an acquired psychiatric disorder. As the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2006). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in December 2003 that discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the veteran is harmless because of the thorough and informative notice provided during the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the February 2005 statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Finally, given the absence of any indication of psychiatric disability during service and no report of a continuity of psychiatric symptomatology since discharge, the Board finds that the record contains sufficient evidence to adjudicate this claim and a VA examination is not necessary. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In light of the foregoing, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Service connection for an acquired psychiatric disorder, to include alcohol dependence, is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs