Citation Nr: 18160674
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-06 776
DATE:	December 27, 2018
ORDER
Entitlement to service connection for substance abuse is denied.
FINDING OF FACT
The Veteran’s substance abuse to include any disorders related to cocaine, alcohol, marijuana, and opiates, was not in the line of duty.
CONCLUSION OF LAW
The criteria for entitlement to service connection for substance abuse have not been met.  38 U.S.C. §§ 105, 1103, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.1(n), 3.102, 3.159, 3.300, 3.301, 3.303 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from September 1982 to June 1985. 
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).
VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).
The Veteran and his representative have not raised any issues as to the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).  
Governing law and regulations
No compensation shall be paid if the disability resulting from injury or disease in service is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs.  38 U.S.C.A. §§ 105, 1131.  Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of the veteran’s own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs.  38 C.F.R. § 3.301.
The simple drinking of alcoholic beverage is not of itself willful misconduct.  However, the deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct.  If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person’s willful misconduct.  Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin.  38 C.F.R. § 3.301(C)(2).
An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed.  For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability of the user; drug abuse means 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(d).
Analysis
The Veteran filed a claim for service connection for substance abuse in June 2013.  In his November 2014 notice of disagreement, he argued that his service work and surroundings contributed to his substance-abuse problems that resulted in his court-martial.
The Veteran’s service treatment records show that he was in alcohol and substance abuse treatment programs in 1984.  In March 1985, it was noted that he had episodic immature use of alcohol but that there was no evidence for significant abuse tendency.  The medical professional also added that it was doubtful that there was any drug abuse.  Service personnel records reflect that in January 1984, he was court-martialed for breach of the peace and assault resulting from abuse of alcohol.  In March 1984, it was noted that he engaged in misconduct as identified by his possession of cannabis.  VA treatment records reveal post-service diagnoses of chronic alcoholism, alcohol use disorder, cocaine use disorder, alcohol dependence, cocaine dependence, marijuana dependence, opiate dependence, and other dependence.  Regarding these diagnoses, these disorders are not disabilities for which service connection can be granted.  38 U.S.C.A. §§ 105, 1110, 1131; 38 C.F.R. § 3.301.  
Under the circumstances here presented, there is no legal basis upon which the Veteran can establish entitlement to service connection for substance abuse.  See 


Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  The benefit sought on appeal is accordingly denied.

 
MICHAEL LANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Cherry, Counsel 

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